IntroductionFootnote *
Chapter 5 is the first of three chapters in Part III that bring the Real Person Approach (RPA) to bear on the doctrine, theory, and practice of partial excuse. This part argues that partial excuse has the potential to realise the key features of the RPA with a view to forming the basis of a Universal Partial Defence (UPD), a proposal which embodies the ultimate aim of advancing social justice within a discrete doctrinal site.
In Part II, Chapter 3 identified how the failure to recognise adequately degrees of desert at the culpability evaluation stage represents a narrow, inauthentic understanding of the human mind, and undermines the principle of proportionality. Moreover, Chapter 4 explained how this deficit contributes to a greater political problem of excessive blame at the heart of the criminal law, through conceptual punitiveness that offends against the principle of parsimony. In its present form, partial excuse goes some way towards addressing these shortcomings by providing a doctrinal mechanism for reducing an offence of murder to one of manslaughter where certain conditions are met. As such, it facilitates a more nuanced consideration of blameworthiness that allows factors to be heard and recognised that provide a more fulsome account of the defendant, and so may offset punitive excess. From the perspective of the RPA, however, there are two core limitations with the current version of partial excuse. First, though it signals the possibility of partial responsibility in the criminal law, this stance is undermined by the fact that the doctrine only applies in the context of homicide cases. This position is at odds with the RPA because the latter calls for recognition of vulnerabilities in respect of all those who come before the law, and not just those who kill. Second, accounts of the doctrine of partial excuse tend to focus predominantly on two bases for a defence: mental disorder (in the instance of diminished responsibility) or provocation/loss of control.Footnote 1 Though more generous than full excuses, these grounds are still narrow and, therefore, are at odds with the aim of the RPA in terms of reflecting personhood as an embodied and relational phenomenon which permits consideration of a wider set of conditions and circumstances that might bear on an individual’s capacity in relation to an offence.
This chapter explores these issues in further detail with a view to arguing for the expansion of the doctrine beyond homicide, to all offence categories. It also represents a springboard for Chapter 7, which sets out a means of legitimising the extension of the basis of the doctrine beyond mental disorder and provocation/loss of control, to other potentially relevant factors. The chapter begins by expanding on the RPA’s call for universality at this site, before drawing out the potential role of partial excuse in facilitating the RPA in doctrine. Next, it provides a brief historical account of the doctrine to gain a sense of its aetiology, before outlining how partial excuse presents in other jurisdictions, in order to affirm the version of the defence most suitable for underpinning the construction of the UPD, and to highlight prominent debates that may bear on the scope of the proposed defence. The discussion then turns to explaining and responding to the core challenges facing the universalisation of partial excuse: its confinement to the mandatory life sentence, and the problem of coordinating the defence across multiple offence categories. In the former context, it also considers more closely the significance of the site of partial excuse, as between a complete excusing condition and a mitigatory factor, arguing for its formal recognition as a member of the excuse family, in light of the doctrine’s inherent connection to moral blame. Finally, the theoretical challenge facing an expansion of the defence is highlighted, in terms of the complaint that it is simply not possible to hold someone ‘partially responsible’ under our current law. This latter point is taken up in detail in Chapter 7, and is introduced here to the extent that it is relevant to the overall aim of achieving universality.
The RPA, Universality, and the Potential of Partial Excuse
The form of partial excuse advanced in this book is best described as universal in nature (rather than ‘generic’ or ‘general’)Footnote 2 because the term captures the spirit of the RPA, which mandates the expansion of the present doctrine in two directions. The first direction relates to the extension of the doctrine beyond homicide. The RPA endorses the recognition of inherent vulnerability. A core aspect of this feature of the framework involves representing the fact that all people (penal subjects and otherwise) are vulnerable to their embodied need and dependency on others. The doctrine of partial excuse has the potential to facilitate this recognition through understanding capacities like rationality as contingent and imperfect and therefore representing responsibility for crime as scalar.Footnote 3 Relatedly, the RPA’s endorsement of recognitive justice demands that the doctrine of partial excuse extend to all those before the law in order to account for the potential pathogenic vulnerability that emerges as a result of the power imbalance between state and penal subject. Chapter 4 demonstrated how the position of the person at this site could give rise to this category of vulnerability by impeding their agency and exposing them to further harm, such as marginalisation and socio-economic deprivation. Accordingly, it is not just those who are convicted of homicide that are entitled to have recognised a fuller construction of agency, but those who commit more minor offences too and, in particular, those whose crime correlates with criminogenic factors emerging from conditions of socio-structural inequality.Footnote 4
The second direction relates to the expansion of the doctrine to include a broader range of factors that may constitute the grounds for a defence, as recognised by the RPA’s mandate to acknowledge situational vulnerability, spanning interpersonal, economic, and social frameworks. As outlined in Chapter 2, in understanding the form of vulnerability endorsed by the RPA, it is important to avoid designating particular cohorts as ‘vulnerable’ owing to a specific characteristic, such as being a particular gender, having a mental disorder or addiction, or coming from a deprived area. For to do so risks further responsibilising the individual (already saddled with the moniker of penal subjectivity) to manage their own risk, overlooking the significance of wider structural inequalities and the socio-historic context of crime.Footnote 5 Lambert captures this sentiment in the context of her use of Morse’s generic ‘guilty but partially responsibility’ verdict (GPR) as a means of accommodating a defence based on the psychological condition of scarcity: ‘But that GPR is not a poverty-specific defense is a strength of the proposal: its political appeal is likely to be broader, and it does not stigmatize the poor as belonging to a separate moral category.’Footnote 6 This understanding also aligns with the UN Convention on the Rights of Persons with Disabilities, art. 12, promoting a greater trend towards universal capacity and moving away from specified mental condition defences.Footnote 7
As such, the RPA calls for the expansion of the basis of the defence beyond the bounds of a diagnosed mental disorder and/or loss of control/provocation, to include non-prescriptive conditions and circumstances that may constitute grounds for an excusing condition. In doing so, the partial excuse doctrine is deployed to provide a more realistic account of the wealth of factors that can impede autonomy, thereby striving for a more meaningful realisation of the proportionality principle.Footnote 8 Accordingly, universality matters greatly to the blueprint of the UPD proposed in Chapter 8, as reflected by the fact that consideration is given to the possibility of granting all defendants an entitlement to raise the defence, as recommended by Paul Robinson in his proposal for a general mitigation to be available at the pre-verdict stage.Footnote 9 The latter half of this chapter focuses on the challenges facing the concept of universality in present doctrines of partial excuse, and seeks to overcome them.
Before moving on to explore the development and iterations of partial excuse in more detail, it is worth clarifying a couple of general points on partial excuse as the target of the RPA.
First, notwithstanding the potential of partial excuse, a question might arise as to why not simply apply the RPA to full excuses, in order to extend their scope to include new grounds like poverty, or to soften existing excuses, like the insanity defence, for instance, to reflect a broader understanding of the human mind (e.g. by extending M’Naghten to include volitional and emotional incapacity). In response, it is acknowledged that the RPA, as a conceptual tool, could be considered in the context of reforming full excuses. However, the reason that partial excuse, in particular, is a useful starting point pertains to the fact that simply adding more excuses to the criminal law offering does nothing to offset the stigmatisation that comes with designating a group of people as ‘poor’ or ‘addicts’, as discussed earlier, if one were to introduce a poverty defence, or a defence grounded in chronic addiction, for instance. Moreover, the RPA values feasibility, and recognises the fact that the introduction of new full defences is a rare occurrence,Footnote 10 and very little progress has been made in this regard notwithstanding decades-long recommendations for greater recognition in law of the role of socio-economic problems in criminogenic behaviour.Footnote 11
The lack of movement suggests a political reluctance to introduce new excuses, because these arguments tend to dissolve into fears about individuals ‘getting away with it’, masking existential concerns regarding the age-old question of free will and determinism. This reluctance is reflected in practice, given the small imprint made by full excuses owing to the fact that juries are generally hesitant to acquit.Footnote 12 This issue is resolved for the purposes of the UPD in Chapter 7, through an explanation of the fact that such fears are based largely on an absolutist understanding of determinism, that can be addressed if perceived external causes are recognised in conjunction with the individual as cause in themselves (a bounded causal theory). This compromise is mirrored in partial excuse because the individual, if successful in bringing a defence, is still found guilty of an offence, convicted, and sentenced. They have not, therefore, ‘got away’ with their crime. Concurrently, partial excuse provides a means of cutting through the ‘all or nothing’ approach to guilt that does not adequately reflect degrees of blameworthiness, and provides a space for juries, at the very least, to come to a greater understanding of the factors that impact most criminal behaviour, offsetting the tendency towards over-blame.Footnote 13
A second point relates to mitigation at sentencing: if the ultimate aim of the RPA is to allow consideration of broader factors to lessen the punitive response, is this not already being done at sentencing, and is post-verdict not a more appropriate site to make improvements without having to restructure legal doctrine? Relatedly, is the existence of partial excuse not simply a ‘procedural anomaly’ owing to the presence of the mandatory life sentence for murder?Footnote 14 Remove this mechanism, and the need for the doctrine dissipates. Again, it is accepted that it would be possible to apply the features of the RPA towards advancing social justice within a sentencing context. However, as discussed in Chapters 1–4, this book makes a case for the recognition of social justice within legal doctrine, as a category of public law. Recognitive justice principles should be considered at sentencing in as much as they are in doctrine. It may be that imbuing doctrine with such principles is the more challenging task. Yet it is submitted that the task is worth pursuing in the interests of social justice and the core tenets of the criminal law (proportionality and parsimony), for partial excuse can stand for something more than a procedural legacy owing to the mandatory life sentence. Later in this chapter, the focus on partial excuse is justified in more detail by an argument emphasising the moral significance of blameworthiness as distinct from punishment. In particular, placing the defence pre-verdict provides an opportunity to offset conceptual punitiveness by introducing moral context to reduce hostile reactions from jury (and judge), which (it is argued in Chapter 8) ought to have a concomitant effect on punishment.
A proposal to reform partial excuse, however, requires an appreciation of its original nature and purpose in as much as it is possible to capture in the space allocated.
A Brief Origin StoryFootnote 15
This section explores the emergence of the partial defence of diminished responsibility, in particular, as the core basis of the UPD (with further detail on the early rationale for provocation outlined in Chapter 8).Footnote 16 The origin of the doctrine of partial excuse is undoubtedly intertwined with homicide, and the quest to evade a capital sentence for murder.Footnote 17 However, a closer reading of its development reveals a more complex landscape beset by a number of competing political, social, and cultural forces, which tend to obfuscate the idea that the doctrine has one ‘true’ purpose or function.Footnote 18 Rather, a more critical lens suggests that the doctrine is underpinned by an enduring impulse to recognise the fallibility of the human condition in the face of circumstances beyond an agent’s control, and that the scope of that recognition expands and contracts in response to the institutional, cultural, and sociopolitical drivers of a given time and place.Footnote 19 This understanding of partial excuse lends itself to a more pointed re-evaluation of the doctrine in the present day, as explored in Chapter 6.
Diminished responsibility originated in the late seventeenth-century Scottish courts as a form of mitigatory plea and had become well established by the mid nineteenth century.Footnote 20 Notwithstanding its relationship to the offence of murder in the present day, it is worth noting that, initially, the doctrine applied to both capital and non-capital charges,Footnote 21 revealing an underlying instinct to acknowledge the complexity of assessments of culpability, notwithstanding the severity of outcome. (This attitude is further reflected in the partial excuse of provocation, where the doctrine was characterised as a general expression of ‘tenderness to the frailty of human nature’.)Footnote 22 The case of McFadyen (1860) resulted in a more structured form of partial excuse with the introduction of the verdict of culpable homicide replacing the verdict of murder with a recommendation to mercy.Footnote 23 Though this decision brought the doctrine within judicial remit to decide upon a sentence in the face of an accused with a mental disorder, the scope of the defence remained generous. For instance, Lord Deas in Dingwall (1867) stated that culpable homicide included ‘murder with extenuating circumstances’ and did not confine those circumstances particularly to an accused’s mental condition.Footnote 24 Moreover, the decisions that followed entrenched the notion that the presence of various types of ‘mental weakness’ could reduce a conviction of murder to one of culpable homicide.Footnote 25
The flexible approach continued for some time until the doctrine’s popularity began to wane in the early twentieth century, owing to various cultural and institutional factors.Footnote 26 In particular, there emerged the sense that those who availed of the defence successfully were being treated too leniently. Such defendants were avoiding the gallows by evading the mandatory sentence for murder at one end while, at the other end, they were avoiding the asylum by not having to rely on the insanity defence with its outcome of compulsory hospitalisation. Further, the rise of the psychiatric profession and the emphasis placed on expert opinion at trial saw a shift towards the medicalisation of the doctrine to the point where a recognised mental condition or disease was becoming a prerequisite.Footnote 27 This changing course culminated in the decision of H.M. Advocate v. Savage,Footnote 28 where Lord Alness’ judgment set a more restrictive, pathologised test,Footnote 29 which was reinforced by the cases that followed and the adoption of the position that the test ought not to be widened further.Footnote 30 With the passage of time, the tide turned again, however, when concerns about the restrictive nature of the Savage approach, as outlined in the Millan Report,Footnote 31 were eventually realised in the case of Galbraith v. H.M. Advocate (No. 2),Footnote 32 and the subsequent legislative reform.Footnote 33 Prior to Galbraith, it was assumed that diminished responsibility in Scotland depended upon a finding that the accused had a mental illness or disease, but this was now no longer necessary,Footnote 34 with the result that the reach of the plea has been considerably widened once more.Footnote 35 In terms of its operation, Chalmers puts the relatively uncontroversial operation of partial defences in Scotland down to an overdependency on prosecutorial discretion,Footnote 36 though the area is presently under review by the Scottish Law Commission’s Homicide Law Project.Footnote 37
The origin story of diminished responsibility in England and Wales, and later Northern Ireland, displays a similar vulnerability to competing socio-historical factors. Indeed, as Norrie notes in the context of England and Wales, the concept of diminished responsibility amounts to ‘a peculiar balance between a number of vectors of policy, principle and understanding’.Footnote 38 Many would argue that the doctrine was introduced to offset the harsh nature of the insanity defence under the M’Naghten Rules, while others assert that its purpose was to appease the abolitionist faction of the death penalty debate.Footnote 39 In the wake of a number of controversial cases,Footnote 40 the Homicide Act 1957 was brought into force which incorporated the doctrine into law. The 1957 Act also abolished the capital penalty for about three quarters of capital crime, and so the doctrine was limited to an offence which had ceased to a significant extent to be a capital crime at all.Footnote 41 Similarly, the introduction of the doctrine to the Republic of Ireland in 2006Footnote 42 appeared to be justified on the basis of competing purposes, as a means of addressing the shortcomings of the mandatory life sentence and the insanity defence, respectively.Footnote 43
Though this account may paint the doctrine as a haphazard solution to more fundamental problems with homicide and the insanity defence, we might also see that its early malleability signalled a deeper instinct to blame and punish those who offend in a morally justifiable manner. Over time, with the development of a more formalised legal system, the influence of the psychiatric profession and a more informed public, the structure of the doctrine solidified, and it became more difficult to make space for recognition of wider contexts that bear on individual culpability. Chapters 3 and 4 reference the evolving knowledge of human behaviour and our understanding of the impact of blame and punishment on the individual and wider society,Footnote 44 as well as a growing non-punitive movement in criminal justice research.Footnote 45 Applying the RPA to this site is an opportunity to reclaim the doctrine of partial excuse with a view to giving formal recognition to the difficult lived realities experienced by the majority of those subject to criminal blame.
The Wider Landscape of Partial Excuse
From looking back to looking outwards, this section sketches the present landscape of partial excuse to get a sense of its construction and operation, the factors that tend to drive reform, and the extent of its use across other (mostly) common law jurisdictions beyond the UK and Ireland (which are dealt with more extensively in Chapter 6).Footnote 46 The discussion helps to clarify the version of partial excuse employed to underpin the UPD, and serves as a backdrop to the more in-depth analysis of the workings of diminished responsibility in Chapter 6.
The concept of reducing criminal liability (and consequently punishment) for those who are deemed deserving of less severe treatment is evident across many jurisdictions through various rules and practices. Depending on where you are in the world, a partial defence can work to undermine the mens rea of a crime, can act to mitigate sentence post-verdict, or can operate as a form of excuse and reduce the culpability for an act (and consequently the punishment), though not to the extent of precluding criminal liability. Across Anglo-American jurisdictions, for example, partial excuses generally operate in the realm of homicide offences only, a successful claim resulting in a reduction of a conviction from murder to one of voluntary manslaughter (or a lesser degree of murder in the US). Defences are mostly rooted in a form of impaired capacity on the part of the defendant,Footnote 47 either pertaining to the presence of a mental disorder in the context of diminished responsibility/diminished capacity, or an extreme emotional reaction in the case of provocation/loss of control/‘extreme emotional disturbance’.Footnote 48 The remainder of the section considers each form in turn.
Diminished Responsibility
The doctrine of diminished responsibility is recognised throughout many Commonwealth jurisdictions,Footnote 49 though in the interests of space, this section will focus on the US, Australia, and New Zealand, which represent a rich and varied set of approaches. First, it is helpful to clarify how the defence functions across the UK and Ireland. If proven, partial excuse doctrine operates by substituting a murder conviction with one of voluntary manslaughter or culpable homicide (Scotland), thereby avoiding the mandatory life sentence for murder. The significance of a reduced offence category lies in the fact that the defendant is proven to have the requisite mens rea for murder, in that they intended to kill or cause serious injury to the victim, and it is the additional presence of a mental health condition or provocative circumstance resulting in loss of control that extenuates the defendant’s blameworthiness for the killing. Because the reduction takes place pre-verdict, this version is sometimes referred to as a ‘formal mitigation’ modelFootnote 50 (though the term ‘mitigation’ in this context is somewhat confusing, and its use for present purpose is clarified later in the chapter). For now, it suffices to note that the UPD is rooted in this version of the defence, as is explored in more detail in Chapter 6. It is helpful to account briefly for how the defence operates in the US also, however, to draw out the distinction between diminished responsibility and diminished capacity.
Diverse Models in the US
Jurisprudence in the US relating to diminished responsibility has sparked confusion.Footnote 51 Not only have some states subsumed the formal mitigation model; several states also employ another approach, which Arenella and others have termed ‘diminished capacity’ or a ‘mens rea model’.Footnote 52 Unlike the formal mitigation model which takes place at the culpability evaluation stage, the mens rea model operates earlier in the process so that evidence is admitted that undermines the mental element of the offence, and it can do so in two ways. First, evidence may be admitted showing that the defendant did not meet the requisite mens rea of murder in the first place, what Arenella describes as a ‘narrower, strict approach’ (which is almost indistinguishable from insanity in that both go to the status of the agent).Footnote 53 Second, evidence may be presented demonstrating that the defendant fell short of a ‘normal’ person’s capacity to entertain the relevant mens rea, what Arenella terms the ‘diminished capacity’ approach, and which can have the result of putting before the jury testimony that only vaguely relates to the proscribed mental element.Footnote 54 Ultimately, Arenella argues that in practice, the two models are interchangeable, with the mens rea model amounting to a diminished capacity model ‘in mens rea clothing’.Footnote 55 It is notable that Canada does not recognise a formal partial defence of diminished responsibility.Footnote 56 However, a similar approach to the mens rea model appears to operate there too, in terms of providing evidence of mental disorder to negate intention for murder.Footnote 57
As most homicide law in the United States is heavily influenced by the Model Penal Code, it is unsurprising that these two branches of diminished responsibility may be found in its pages. The mens rea model is captured by the diminished capacity defence under the Model Penal Code § 4.02 (permitting evidence ‘that the defendant suffered from a mental disease or defect … whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense’). Of note is the fact that § 4.02 is a general defence in that it may apply to all offences, not only homicide.Footnote 58 The diminished responsibility variant is also evident in those states where the Model Penal Code’s ‘extreme mental or emotional disturbance’ doctrine (§ 210.3(1)(b)) operates as a voluntary manslaughter equivalent,Footnote 59 mitigating murder to manslaughter in the context of an intentional killing.Footnote 60
In Search of Meaning across Australia and New Zealand
Though it is not possible to do justice to the depth and breadth of the literature on partial excuse in Australia and New Zealand, it is useful to consider these jurisdictions in terms of the role of the mandatory life sentence, and what it implies about the significance of diminished responsibility. Diminished responsibility is a defence in four Australian jurisdictions, each with its own definition and label,Footnote 61 and works to reduce murder to manslaughter, adopting the formal mitigation model outlined previously. In states where the mandatory life sentence no longer applies, there have been calls for the abolition of the defence.Footnote 62 In particular, the states of Victoria and Western Australia do not have the defence, and both respective Law Reform Commissions have recommended this position continue, with the question of diminished responsibility remaining relevant at the sentencing stage only.Footnote 63 Notwithstanding this trend, it is interesting to note that the defence remains in New South Wales despite the abolition of the mandatory life sentence for murder in 1989.Footnote 64 The reason for its retention has been argued as relating to the significance of the normative role of the jury in determining questions of culpability, and for reasons pertaining to fair labelling.Footnote 65 The import of diminished responsibility in its own right has been further emphasised by Loughnan, who has recommended a stand-alone legal construct ‘diminished responsibility manslaughter’ as a form of ‘offence-cum-defence’, highlighting the fact that those who avail of the defence are ‘differently liable’.Footnote 66 Loughnan writes: ‘Conceptualising diminished responsibility manslaughter in this way means that its capacity to accommodate diverse and dynamic social meanings around unlawful killing – which do not fall neatly across the divisions between offences and defences, and liability and responsibility – becomes apparent.’Footnote 67
New Zealand has never had a partial defence of diminished responsibility,Footnote 68 but neither does it have a mandatory life sentence for murder,Footnote 69 meaning that there is more flexibility in sentencing and so there is a sense that recognition of a partial defence to homicide in this context is not necessary. Therefore, less weight appears to be afforded to the greater questions of the moral function of the jury in assessments of blameworthiness here, in addition to the role of fair labelling in the context of defences. The failure to provide for a diminished responsibility defence in New Zealand has been criticised as ‘an issue of real concern’,Footnote 70 however, with Woodward citing the following problems raised by its absence:
the considerably greater stigma attached to a murder conviction over one for manslaughter, the absence of a community value judgement in relation to whether the mental disorder did, in fact, reduce culpability, and the fact that this absence results in a lack of guidance for the sentencing judge.Footnote 71
Moreover, it is suggested that the courts are inclined towards a flexible interpretation of the provocation defence in order to accommodate this perceived lack.Footnote 72 The significance of the doctrine applying at the pre-verdict stage is returned to later.
Provocation/Loss of Control
Though diminished responsibility forms the ‘template’ for the UPD, Chapter 8 will consider why it may be appropriate to subsume the doctrine of provocation/loss of control within the proposal also.Footnote 73 Accordingly, it is helpful at this stage to provide a sense of the overall structure of provocation in a wider context, and to introduce the key issues at play in this controversial area. The problems with provocation run deep. At a fundamental level, the defence causes confusion because it tends to vacillate between being characterised as a partial justification and/or a partial excuse depending on its definition and interpretation.Footnote 74 Consequently, its rationale shapeshifts between the following two positions highlighted by Dressler, when he asks: ‘Does the provocation plea in a criminal homicide prosecution function as a partial excuse, based on the actor’s passion and subsequent loss of self-control, or as a partial justification, based on the wrongful conduct of the provoker?’Footnote 75 This question appears to trouble all jurisdictions that allow the defence.
Definitional Approaches and Structures
Notwithstanding this foundational concern, the doctrine is embedded across the jurisdictions of the UK and Ireland.Footnote 76 Ireland’s approach differs markedly to the statutory version of the defence under the Coroners and Justice Act 2009, (adopted by England and Wales, and Northern Ireland), following a simpler, subjective approach based on the common law tradition.Footnote 77 Moreover, it operates in an exculpatory context only, in that the idea of it acting to undermine mens rea (as discussed in the context of diminished responsibility earlier) has been rejected by the courts.Footnote 78 In this sense, Ireland has developed a far more subjective approach to provocation than the UK jurisdictions, which has regard to the individual defendant’s ‘temperament, character and circumstances’ as the cause of a loss of control in response to a provocation.Footnote 79 And though the test has been criticised for its ambiguities,Footnote 80 its flexible nature has been commended as a means of recognising ‘the essentially normative nature of the provocation defence’.Footnote 81
Conversely, in England and Wales and Northern Ireland, the common law definition of provocation was replaced with a ‘loss of control’ test but continues to operate in the same manner as a partial defence to murder.Footnote 82 The loss-of-control test is by far the most technical version of the defence, the Law Commission having rejected simpler wording along the lines of the MPC’s ‘extreme mental or emotional disturbance’ (EMED) defence on the grounds of it being ‘too vague and indiscriminate’.Footnote 83 Yet it is questionable whether the more prescriptive approach has resulted in greater clarity, given that confusion as to its interpretation and rationale remain,Footnote 84 with some continuing to call for its abolition.Footnote 85 Accordingly, the extent to which the introduction of complex wording can clarify the rationale, and ease interpretation issues for the jury, is brought into question. Moreover, the Irish approach suggests there may be something to be said for keeping the wording simple and fore-fronting the normative role of the jury as decision-maker. (At the very least, we might surmise that one version results in no more or no less confusion than the other!) This theme is explored further in Chapter 6, with a view to informing the definitional approach of the UPD.
The incarnation of provocation under the Model Penal Code is broader than the common law position and overlaps with situations generally associated with diminished responsibility. The defence is embodied by the Model Penal Code’s EMED doctrine,Footnote 86 which expands the common law understanding and acts to reduce murder to a lesser degree of homicide in the context of intentional killing. To bring a successful defence, the defendant must also show that the disturbance had a ‘reasonable explanation or excuse’, which is determined by a hybrid subjective/objective test: ‘from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be’.Footnote 87 Robinson’s statement captures the broader nature of the defence as compared to the common law position, and how it may include circumstances generally associated with diminished responsibility:
The Code’s position is that if the actor’s killing is less blameworthy by virtue of the influencing conditions, then such reduced blameworthiness exists no matter who is killed. Indeed, the Code does not even require a provocation as such; the relevant ‘disturbance’ may arise from any source so long as it satisfies the rule’s requirements.Footnote 88
An ‘extreme emotional disturbance’ (EED) version of the defence has also been introduced,Footnote 89 broadening the remit still. However, recent findings suggest that legislative support for the EMED/EED defence is relatively sparse across states, and the EED version in particular is often characterised as overly generous.Footnote 90 However, the MPC definitions have been endorsed by advocates of generic partial excuse as providing a potential basis for such a defence,Footnote 91 and so will be revisited in Chapter 8.
Finally, the evolution of the doctrine of provocation in South Africa is worth mentioning, in that it has developed from a partial defence to murder similar to the common law interpretation,Footnote 92 to a complete defence of severe mental or emotional stress, including non-pathological conditions like provocation, where the accused is deprived of their criminal capacity.Footnote 93 It can also apply to cases of assault, and its operation is tied closely to the doctrine of specific intent.Footnote 94 That said, the courts appear to have adopted a narrow approach to the defence and it is generally deemed available only where it resulted in automatism or impacted the accused’s cognitive capacity.Footnote 95
Two Big Problems: Infidelity as a Basis of the Defence and Killing in the Context of Domestic Abuse
The provocation/loss of control defence family appears beset by concerns relating to two core scenarios as the basis for the defence: infidelity and domestic abuse. In Scotland, a partial defence of provocation reduces a murder charge to voluntary culpable homicide,Footnote 96 and can also be pled in relation to other offences, however, only as mitigation in sentence.Footnote 97 The Scots defence has been heavily criticised for its acceptance of sexual infidelity as a basis for the excuse.Footnote 98 This issue was also a core driver for reform under the 2009 Act in England and Wales, where the definition of loss of control explicitly excludes sexual infidelity (and also revenge killings) as a ‘qualifying trigger’ for the defence.Footnote 99 In the context of domestic abuse cases, Scots law continues to include an immediacy requirement which tends to preclude female reactions to provocative conduct of the deceased (e.g. long-term abuse).Footnote 100 Calls for reform are gaining momentum, however, particularly since the introduction of the offences relating to abusive behaviour and coercive control,Footnote 101 bringing a growing appreciation of the complexity of domestic abuse cases. As Wake and Reed observe: ‘[A]llegations of sexual infidelity may be symptomatic of broader issues of coercive control within the relationship to which attention should be drawn when assessing whether to leave the case to fact-finder evaluation.’Footnote 102 As a result of such concerns, the law of provocation is presently under review by the Scottish Law Commission’s Eleventh Programme of Reform,Footnote 103 with particular focus on the question of sexual-infidelity killings, and with a view to modernising the law in this area. A number of scholars are also calling for a new defence in the context of domestic homicide cases, as a result.Footnote 104 And most recently, the Law Commission of England and Wales have announced a review of domestic homicide given current understandings of the nature and impact of domestic abuse in this context.Footnote 105 How this issue might be reconciled with the UPD is addressed in Chapter 8.
Similar concerns around the use of provocation in the context of male anger and domestic abuse feature in Australian scholarship, in tandem with uncertainty about the need for the defence when the mandatory life sentence is not a factor.Footnote 106 As a result, of the eight Australian jurisdictions, only South Australia retains the common law version of the defence,Footnote 107 and it has been abolished in Tasmania,Footnote 108 Victoria,Footnote 109 and Western Australia.Footnote 110 However, a version of the defence still operates in New South Wales,Footnote 111 Queensland,Footnote 112 Northern Territory,Footnote 113 and the Australian Capital Territory.Footnote 114 Queensland’s response to the issue of domestic homicide is particularly noteworthy, with the introduction of the defence of ‘killing for preservation in an abusive domestic relationship’ defence, which applies where the deceased committed acts of ‘serious domestic violence … in the course of an abusive domestic relationship’ and the defendant believed the killing necessary (on reasonable grounds) for their ‘preservation from death of grievous bodily harm’.Footnote 115 Of those that retain the defence, New South Wales is unique in its introduction of an ‘extreme provocation’Footnote 116 version, though the word ‘extreme’ is not elaborated on in the statute, and the reform has been criticised for restricting the defence ‘to the point of redundancy’.Footnote 117 Notwithstanding these developments, recent findings suggest that, taken together, the reforms have done little to address ‘persistent misconceptions and stereotypes associated with domestic abuse’Footnote 118 in this region. In 2009, New Zealand repealed the partial defence of provocation, following recommendations from the Law Commission, though it may be considered at the sentencing stage.Footnote 119 The abolitionist movement is not without its critics, however, particularly in the context of victims of familial abuse who go on to commit homicide.Footnote 120 Notwithstanding these concerns, a 2016 Report by the New Zealand Law Commission continues to recommend no new partial defence.Footnote 121
To round up, we might conclude that some form of concession or reduced blameworthiness is evidenced across the jurisdictions mentioned, though the form the mitigation takes varies as to whether it is dictated by mens rea and whether it sits pre- or post-verdict, affecting liability and punishment, or just the latter. Wasik captures the confuscating and pervious nature of doctrines and practices of partial excuse when he frames them in terms of a ‘widespread intuitive response’,Footnote 122 adding that ‘[i]t is characteristic of these laws, however, that they are diverse in scope and operation and generally appear weak in their theoretical underpinning’.Footnote 123 The theoretical underpinning of partial excuse is explored in detail in Chapter 7; however, for now it is important to note that the legitimation of partial excuse is integral to understanding its place as between complete excuse and a factor in mitigation, the topic with which the next section is concerned. In order to address the argument for a UPD, I will therefore assume that the law in the UK and Ireland provides the background against which this inquiry takes place, with a focus on partial excuse as functioning to reduce murder to manslaughter/culpable homicide in the context of intentional killings.
One of the more pertinent questions for the UPD that emerges from this section for now, then (particularly in light of the position in New Zealand), is why not simply remove the mandatory life sentence and then allow mitigation of punishment for all at the sentencing stage? To answer this question, it is necessary to address why the doctrine matters independently of the mandatory life sentence.
Excuse, Mitigation, and the Mandatory Life SentenceFootnote 124
The operation of the fixed penalty for murder appears to hold to ransom the existence of partial excuse, and is often cited to counter expansionist arguments. For example, Susanne Dell has remarked that diminished responsibility exists ‘only to provide a means of escape from the mandatory penalty for murder’.Footnote 125 Similarly, Wasik, citing the work of eminent authorities like Glanville Williams, writes, ‘[i]t is the general view of the commentators that the very existence of partial excuses is dependent upon the retention of the fixed penalty for murder, and that if the fixed penalty was abolished, partial excuses could go too’.Footnote 126 On this view, partial excuse is perceived merely as a mechanism for delivering standard sentencing mitigation (in limited circumstances) by reducing a murder sentence to one of manslaughter, and so it is not seen as an excuse in the ‘true’ sense of the term.
However, as the overview of the evolution of the doctrine suggests earlier in this chapter, partial excuse was used to fulfil other aims too, like compensating for the inadequacy of the insanity defence, and advancing the instinct to blame according to desert in the face of human fallibility. This more nuanced interpretation implies that there has always been more to partial excuse than mitigation alone and, crucially, that further use can be made of the doctrine to advance the RPA through the universalisation of the defence across all offence categories. As such, the remainder of this section seeks to characterise the doctrine as a form of excuse, as distinct from informal mitigation. In doing so, it undermines the position that more fine-grained considerations of blame ascription ought to be reserved only for those who are charged with murder.
Conceptualising the doctrine as a type of mitigation is problematic because it fails to appreciate fully the differing roles, and normative weight, of excuses and mitigatory factors in the criminal justice process. It is argued that, given its pre-verdict location, the nature of partial excuse is closer to an excuse (which deals with condemnation-phase culpability) than a form of mitigation (which deals with punishment-phase culpability). In terms of its site, then, I argue, with Wasik, that partial excuses have a ‘legitimate status’ in and of themselves, in addition to a ‘wider significance than is generally recognised’.Footnote 127 Thus, there is an argument for acknowledging the concept of partial excuse as a distinct doctrine that sits on a scale between the two poles of excusing condition (formal full excuse) and mitigating excuse (factor at sentencing).Footnote 128 Though beyond the scope of this discussion, it is also worth highlighting here the potential undermining of the principle of fair labelling in failing to recognise reduced culpability in the offence label, and not just in a sentencing context.Footnote 129
The site of partial excuse within the criminal justice process is indicative of its nature. At a procedural level, the matter of excuse is dealt with during the condemnation stage (trial or otherwise). The condemnation stage is concerned with an individual’s criminal responsibility, and includes the process of evaluating culpability in the context of the wrongdoing committed, which involves the consideration of principles relating to both inculpation and exculpation, and the pronouncement of that evaluation through verdict.Footnote 130 Thus, condemnation is seen as a distinct criminal justice exercise to the imposition of punishment at sentencing, for, as Phyllis Crocker notes, it is generally accepted that a defendant’s culpability for wrongdoing happens prior to the punishment phase.Footnote 131 This view is reinforced by Brink, who points to the ‘division of jurisprudential labor’ within the criminal trial, as between the guilt phase (where ‘a determination of offense creates a presumption of culpability for wrongdoing, which the defense can attempt to rebut, establishing an excuse’) and the sentencing phase (where ‘mitigation at sentencing can include both desert factors relevant to, but not sufficient for, excuse and non-desert factors, such as remorse or reform’).Footnote 132 Therefore, the positioning of partial excuse prior to verdict suggests the doctrine of partial excuse relates primarily to a defendant’s culpability.
As alluded to previously in Brink’s definition of the sentencing phase, the issue of culpability is not exclusive to the guilt phase, as it can also be relevant to punishment. Consequently, there is some confusion over the nature of the culpability imposed as between the two stages. The conflation of these forms of culpability tends to reinforce the perception of the doctrine as a type of mitigation, which would become superfluous upon the removal of the mandatory life sentence. Reference to the Sentencing Guidelines for Crown Court judges in England and Wales is useful to distinguishing the two forms in order to highlight the significance of culpability at the guilt stage. The Guidelines dictate that assessing the level of culpability is the first step in evaluating severity of sentence.Footnote 133 This structure tends to support the assumption that the condemnation stage (pre-verdict) is merely an exercise in evidentiary fact-finding, with the issue of culpability being dealt with at sentencing. However, such a reading obscures the difference between a defendant’s culpability for the crime committed with a more general understanding of their culpability as it relates to the scope of the punishment inquiry.Footnote 134 Crocker clarifies the distinction between the two when she writes that ‘[t]he punishment-phase determination is not a recapitulation of the guilt-phase decision, but both a reconceptualization of the defendant’s guilt-phase culpability and the consideration of new factors relevant only to punishment’.Footnote 135 Hill further explains the distinction when she notes that mitigating factors such as family responsibilities, previous good deeds, and so forth are often more minor and remote from the circumstances of the crime, than issues such as ‘the emotions and motivations underlying the criminal act itself’.Footnote 136 Similarly, Olusanya, writing in the context of international criminal law, argues that the line between excuse and mitigation points to problems with the approach of ‘mixing relatively minor issues’ with more fundamental issues relating to culpability, such as post-traumatic stress disorder.Footnote 137 The same could be said of partial excuse and mitigation in a domestic criminal law context. The point is that the nature of culpability assessed at the condemnation site differs from that assessed at the punishment site because the former relates more directly to the blameworthiness of the person in the context of the crime committed. As a result, viewing partial excuse as irrelevant upon the removal of the mandatory life sentence on the basis that pre- and post-verdict forms of culpability are commensurate is conceptually misguided.
Furthermore, Morse asserts that the characterisation of culpability as something that relates primarily to sentencing is problematic for two reasons. First, the discretionary nature of sentencing (in some jurisdictions) means that there is a risk that sentencing judges may give inadequate and/or inconsistent attention to the ‘mitigating force’ of reduced rationality. In addition, a sentencing judge’s consideration of the purposes of sentencing (like rehabilitation, incapacitation, security, deterrence) may overshadow the need to attend to the circumstances leading to reduced culpability of the person who offends. The second reason concerns the potential gap between a judge’s theory of responsibility and community norms relating to blameworthiness. Leaving the question of reduced culpability primarily to the sentencing phase effectively removes the culpability evaluation from ‘the highly visible trial stage’ to the ‘comparatively low visibility sentencing proceeding’.Footnote 138 For Morse, this approach is at odds with the Anglo-American justice system, which he claims ‘has a preference for making crucial culpability determinations that affect punishment at trial’.Footnote 139 Partial defences such as diminished responsibility are innately tied to the defendant’s explanation for the wrongdoing, and affect their culpability accordingly. Therefore, to frame partial excuse as mitigation only fails to attend to the doctrine’s ‘intrinsic connection to moral blame’.Footnote 140
If the doctrine is accepted as a form of excuse and so relevant to condemnation stage culpability, notwithstanding the presence or absence of the mandatory life sentence, it is difficult to justify its restriction to murder only. For, on this understanding, a moral discrepancy emerges whereby offenders who commit homicide would be subject to a closer culpability evaluation than their non-homicide counterparts. The offence of attempted murder is useful in illustrating the point.Footnote 141 Taking the partial defence of diminished responsibility, which is available in most common law jurisdictions, the principle of partial excuse in the criminal law would have it that if X killed Y and X had a mental disorder that reduced their responsibility, the notion of scalar responsibility would be recognised and reflected in their conviction, through a lesser offence – from murder to manslaughter. However, if X attempted (and failed) to kill Y, and the case is proven against them, then X is guilty of attempted murder, as the law does not recognise a reduced version of this offence in the form of attempted voluntary manslaughter. The RPA’s call to universalise partial excuse across all offence categories recognises, therefore, the discrepancy of moral outcomes in relation to murder and non-murder offences by providing a more in-depth culpability evaluation not only to offenders who are charged with murder but also to those charged with lower tariff offences.
The Coordination Objection
Another frequently cited argument against a general partial excuse is that such a defence cannot be consistently applied, because not all offences have lesser culpability categories related to them – for example, the offence of criminal damage. Wasik captures the extent of this obstacle when he writes:
It has been suggested that partial excuses are unlikely to be extended much further in the criminal law because the benefits to be derived have to be balanced against the practical difficulties … . / In the end, it may well be that partial excuses will be generally confined to the law of homicide because of the structure of the offences involved, their seriousness and the special stigma of ‘murder’.Footnote 142
It is submitted that this structural problem ought not to outweigh the need to reconsider the scope of the doctrine in light of the argument set out earlier. At the very least, it is worth noting that an argument against extending the scope of partial excuse on the basis that it is too difficult to achieve consistency misses the point that the doctrine is already inconsistently applied because, at present, it only applies to homicide, to the exclusion of all other offence categories. The significance of scalar blame in its own right was suggested in Chapter 3, and so the hollow perception of the special nature of the mandatory life sentence for murder is arguably an insufficient reason to restrict the expansion of the doctrine. A thorough examination of solutions to the coordination issue is dealt with more extensively in Chapter 8.Footnote 143 As such, the purpose of this part is to point to the more prominent responses to the coordination problem as a platform for the consideration of the most feasible means of expanding the doctrine of partial excuse.
So, let us imagine that there is consensus that the doctrine of partial excuse ought to be expanded across all offences in order to achieve this aim. How best, then, can the legal system manifest and communicate that reduced culpability in a way that not only delivers a more precise rendering of just deserts to the person who offends as a normative reflection of their blameworthiness, but also does not detract from the harm committed, nor how offences are communicated at the prohibition stage? And perhaps, most importantly, how can any such expansion be applied consistently across divergent offence categories? These issues may be borne out through proposals for expansion that have been considered over the years, though with little real impact. The proposals may be divided into three categories in accordance with where they take place in the criminal justice process: pre-verdict, post-verdict, and at the point of verdict itself. Solutions that are set in the first two stages are the most prevalent, and perhaps the most cumbersome in terms of achieving consistency; however, recent scholarship on the nature of verdict may prove a more promising avenue for future feasibility studies. As a starting point, Wasik’s study provides one of the most comprehensive summaries of potential solutions that take place pre- and post-verdict.
Pre-verdict, Wasik points to two ways in which to tackle the problem of coordinating an expanded partial excuse, first, in the creation of new offences, and second, in the use of existing offences. The formation of new, what he terms ‘nominal’, offence categories could be introduced to sit below related more serious offences, mirroring the present structure of voluntary homicide. The problem with this proposal is threefold. First, it would involve the expansion of criminal offence categories at a time when the enlargement of the criminal law through the introduction of new offences is proving unwieldy and harmful owing to its net-widening effect.Footnote 144 Second, introducing nominal offence categories is likely to add to the burden (and confusion) of the jury in terms of assessing whether a particular offence charged has been proved, not to mention public confusion as to the nature of offence categories.Footnote 145 Third, the introduction of such complexity at the prohibition stage runs the risk of violating principles pertaining to fair labelling, and the potential dilution of the harm factor of a specified offence.Footnote 146 Wasik’s second pre-verdict proposal sees the use of existing offence categories to reflect reduced culpability, for example, the reduction of murder to involuntary manslaughter, or assault causing harm to simple assault. If consistency is to stand as a core value of an expanded doctrine, then this suggestion is unlikely to prove a feasible option because there exists only a small number of distinct offences that have a related lesser version – for example, assault and assault causing harm, in an Irish context. Further, as Gordon noted, some such offences have diverging actus reus, which makes the problem even more insurmountable. For instance, sexual assault may be framed as a lesser gradation of an offence of rape, but the actus reus for each offence is distinct.Footnote 147
The post-verdict suggestion of providing some means of formal mitigation, potentially through the introduction of sentencing guidelines, would see a specific reduction of sentence on a successfully argued partial excuse. This solution has the advantage of getting around the difficulties of creating lesser offence categories by offloading the burden of achieving a more particularised outcome to the sentencing stage. Such an approach may be the most feasible so far from a practical perspective because it avoids the difficulties involved in seeking to restructure offences. However, aside from the complexity involved in calculating a discount,Footnote 148 and questions regarding the allocation of work as between judge and jury,Footnote 149 it is arguable that the post-verdict solution fails to grasp the spirit of an expanded partial excuse doctrine. This chapter has argued for a form of partial excuse which stands to reduce culpability at the exculpatory stage of the trial, because it is at this point that a normative assessment of the accused’s blameworthiness takes place. As discussed earlier, the type of culpability considered at the sentencing stage is more general in nature, and it does not necessarily always relate adequately to the person’s behaviour in the context of their culpability for the offence charged. Further, the post-verdict solution takes place at a less visible stage in the criminal justice process. For it is at the trial stage that normative communication is strongest as between the person and the state, and the state to the people, about the defendant’s moral blameworthiness.Footnote 150
Therefore, neither of the aforementioned pre- (offence category focused) nor post-verdict proposals address sufficiently the problem of capturing and manifesting a more fine-grained culpability assessment, in a consistent way, and at a key didactic point in the criminal justice process.Footnote 151 As such, it is the position of this book that a form of general partial defence, sitting pre-verdict but independent of offence category, provides the most appropriate compromise between upholding the legitimacy of the law in recognising more proportionate culpability determinations at its moral core, and not unduly disrupting existing offence structures. Aditionally, as explored further in Chapter 7, addressing issues of proportionality within the realm of excuse is fitting in light of the more dynamic version of agency evident at the exculpation stage (as distinct from a less flexible understanding of agency at the inculpation stage),Footnote 152 which facilitates more particularised inquiries.
The Site of Verdict
If the notion of a general partial defence is accepted, this raises the question of how it can be recognised at the condemnation stage, which presently holds that an individual is either ‘guilty’ or ‘not guilty’, with no possibility for anything in between.Footnote 153 Such a bicephalic outcome is at odds with the doctrine of partial excuse, if it is accepted that the latter recognises degrees of culpability within the criminal law.Footnote 154 In his discussion of the criminal verdict, Brink frames this problem in terms of a ‘normative gap between scalar input and bivalent outcomes in the criminal law’,Footnote 155 and explores the possibility of a multivalent verdict approach as a means of delivering a more accurate just deserts.Footnote 156 Indeed, if, as Brink asserts, retributivism (as the dominant characteristic of criminal law) ‘predicates censure and sanction on culpable or responsible wrongdoing’,Footnote 157 then there is an argument for revisiting the present construct of verdict so that it better aligns with a more fine-grained culpability evaluation.Footnote 158
Though the focus of this book is on partial defence doctrine, and a thorough analysis of verdict is therefore beyond its scope, it is important to highlight recent reform proposals at this site which may provide a solution to the recognition of reduced culpability at condemnation, rather than at punishment.Footnote 159 Verdict matters, not only because it is a pronouncement on the evaluation of proofFootnote 160 but also because it is a decisive point in the criminal process that entails a formal, public performance of state condemnation.Footnote 161 As Jackson highlights, notwithstanding its procedural purpose, the common or ‘lay’ interpretation of verdict is concerned largely with establishing an accused’s narrative and the truth of the case, in addition to attributing social blame.Footnote 162 This reading of verdict is significant because a guilty verdict sees those subject to it evaluated through, what Christie terms, ‘simplistic dichotomies’.Footnote 163 It communicates an ‘us’ and ‘them’ mentality in the community which reinforces labelling, stigmatisation, and the exclusion of the person who offends from the community, with an accompanying loss of any moral claim to justice.Footnote 164 Yet the nature and impact of the bivalent verdict endures with very little scrutiny,Footnote 165 largely for reasons of historical assumption and inertia.Footnote 166
A few notable works explore the possibility of a multivalent verdict system through various strategies.Footnote 167 Over forty years ago, Herbert Fingarette and Ann Fingarette Hasse envisaged a ‘Disability of Mind’ defence which would encapsulate any form of mental impairment active at the time of an offence, notwithstanding its aetiology, severity, or duration.Footnote 168 The authors posited a defence that could result in four alternative verdicts of guilt that would predicate sentencing outcomes: Nonculpable Disability of MindFootnote 169 (no punishment); Nonculpable Partial Disability of MindFootnote 170 (mitigation of punishment for the offence charged); Culpable Disability of Mind,Footnote 171 and, its partial variant, Culpable Partial Disability of Mind,Footnote 172 (both of which would see potential mitigation for intent/knowledge offences, and no mitigation for negligence offences). It is also worth noting the contribution of Paul Robinson in this regard, who proposes a trivalent approach to verdict and notes that the language of guilt or responsibility, which focuses on the moral value of the person, ought to shift towards expressions that centre on the wrongdoing itself, for example, ‘violation’, ‘violation with reduced responsibility’, and ‘non-violation’.Footnote 173
More recently, Brink’s extensive work in the area of responsibility and verdict explores the possibility of both a trivalent and tetravalent culpability assessment in order to ‘eliminate the sins of overpunishment’.Footnote 174 The trivalent system would encompass verdicts ranging from full responsibility, to partial responsibility, to nonresponsibility.Footnote 175 He goes further, and suggests a more refined, tetravalent system that would see culpability divided into quartiles that, he maintains, would effectively achieve the elimination of overpunishment.Footnote 176 Notwithstanding this appealing claim, it is likely that a trivalent approach would be a more plausible mechanism for facilitating a partial defence. For, Brink himself notes that tetravalence sits at ‘the limit of granularity that is psychologically realistic’,Footnote 177 and given that there is no such model in operation, considerable work would need to be done to investigate its reception in a practical sense. Conversely, a tripartite verdict structure is closest to the present systems in place across the UK and Ireland, for example, were those jurisdictions to allow for the possibility of an expanded, generic form of partial excuse. Scotland, in particular, offers a third verdict of ‘not proven’, which results in an acquittal where there is insufficient evidence of guilt.Footnote 178 Though differing in substance, having a third option means that there is at least familiarity with the possibility of a non-binary verdict. A trivalent structure is also recognised in certain civil jurisdictions. For example, the German Criminal Code provides a complete excuse for a full lack of normative competence, and a partial excuse in response to impaired normative competence.Footnote 179
Though a trivalent structure might be the most plausible option, regardless of the form a multivalent verdict might take, at its foundation, the approach acknowledges that culpability is not simply a matter of status but a matter of scale. Even where a defence or partial defence is unsuccessful, the defendant has had the opportunity to present factors that may have borne on their culpability for the crime, providing a richer authentic narrative account at the normative heart of the trial. And if successful, a reduced level of culpability, reflected in a scalar verdict, not only predicates a more accurate assessment of desert,Footnote 180 but also promotes a more authentic perception of the person, beyond that of crude dichotomies that reinforce stigmatisation – guilty/not guilty, evil/innocent, one of them/one of us.
Partial Excuse, Partial Responsibility?
Finally, a core theoretical obstacle to the expansion of the doctrine of partial excuse rests on the assumption that it would introduce the notion of scalar responsibility, contra the present compatibilist account of the criminal law, which perceives responsibility as absolute. The compatibilist view holds that determinism might exist, but it is out with the purview of the criminal law. Consequently, the criminal law takes it as legitimate to blame and punish an individual in circumstances where contextual factors (beyond formal excuses like insanity and duress) have overborn their will, for example, in the case of addiction. This approach works for the law because, as Anders Kaye observes, it is able to hold two distinct impulses: the attraction to causal explanation and the reactive desire to place blame on an individual in the face of a perceived wrong.Footnote 181 Chapter 3 has emphasised the need to recognise degrees of blameworthiness in order to adhere more fully to the principle of proportionality. Chapter 7 builds on this work by showing how the aforesaid argument for absolute responsibility derives from semantic confusion across two distinct stages of criminal responsibility attribution: inculpation and exculpation.
Conclusion
The existence of the doctrine of partial excuse discloses something significant about fundamental aspects of our criminal law. It suggests that the law acknowledges, at least in the context of murder, that blameworthiness can be scalar where certain conditions are met. Further, it challenges its own dualistic construct of the subject of the law as rational agent, where the individual is deemed either rational or not rational, with no space for recognition of the complexity of a person’s social reality. Partial excuse quietly affirms that, in a legal context (and not just in a moral one), there can exist degrees of blameworthiness in certain circumstances largely owing to the innately imperfect nature of human rationality, aligning with the call of the RPA for a more accurate understanding of proportionality. In response to the RPA, this chapter has argued for the universalisation of partial excuse across all offence categories, and for its basis to be extended beyond mental disorder and provocation/loss of control.
A historical view has shown how partial excuse is underpinned by an enduring impulse to recognise the fallibility of the human condition in the face of circumstances beyond an agent’s control, and that the scope of that recognition expands and contracts in response to the institutional, cultural, and sociopolitical drivers of a given time and place. This approach continues in the present day and across the common law jurisdictions examined, both in the context of diminished responsibility and provocation/loss of control. In light of its inherent versatility, and with the boon of our current knowledge of human psychology and lived experience in the context of crime, there is cause to demand the reclamation of the doctrine so that we can continue to pay heed to the reality of human struggle where it impacts criminogenic behaviour. To this end, the chapter has outlined and sought to undermine three key objections to the concept of an expanded doctrine of partial excuse, laying the groundwork for a closer analysis of the operation of the doctrine of diminished responsibility, as a template for the UPD.
Introduction
In the spirit of a real-world philosophy approach,Footnote 1 this chapter explores the reality (in as much as it can) of the law relating to partial excuse in practice, taking the example of the defence of diminished responsibility as the proposed progenitor of the Universal Partial Defence (UPD). The operation of the defence is an important place to start when taking a more particularised theoretical approach to understanding the conception of partial excuse, and in seeking to legitimise its expansion to include social circumstance as well as a broader understanding of rational agency, as discussed in Chapter 7. Drawing on case law and empirical studies, the chapter presents a fine-grained account of the operation of the defence, showing how the court at times takes a penumbral stance on the meaning of ‘abnormality’ or ‘mental disorder’ for the purposes of diminished responsibility, in order to meet the perceived requirements of justice in a particular case. The analysis also sheds light on the remit of the expert and the role of the jury in evaluating the defendant’s moral blameworthiness, with a view to reinforcing the primacy of the normative test upon which the defence is based. Finally, the chapter consolidates what is salvageable from the defence to transition towards the UPD. Before embarking on the greater analysis, however, the chapter outlines the reasons for using diminished responsibility as a template for the UPD and why, though valuable as a basis for the proposal, the defence ought to be handled with caution.
A Template for the UPD
Scholars who recommend the introduction of a generic partial excuse at the pre-verdict stage tend to base their recommendations on the existing US Model Penal Code definition of the insanity defence and that of ‘extreme (mental and) emotional disturbance’ (EMED/EED).Footnote 2 For instance, Morse favours a definition that might look something like the EMED formula: ‘extreme mental or emotional disturbance for which there is reasonable explanation or excuse’.Footnote 3 And though his approach is largely endorsed by scholars such as Coppola and Lambert,Footnote 4 it is worth noting his viewpoint in making this recommendation to the effect that he did not designate the words of the test itself as crucial. Rather, he opines that ‘[j]uries just need some formulation roughly to guide their normative judgment’.Footnote 5 While the adoption of some version of the Model Penal Code wording might appear plausible from the US perspective, however, it is likely to be less favourable to the jurisdictions of the UK and Ireland. For, in its consideration of the EMED defence during its review of the law of provocation, the Law Commission of England and Wales rejected the EMED definition on account of its perceived vagueness.Footnote 6 Therefore, it is the position of this book that though much can be gained from the MPC definitions, the arrangement of diminished responsibility under the Coroners and Justice Act 2009 offers a more feasible starting point for the UPD, given its more concrete structure which provides a clearer division between the grounds of an excuse and the excusing condition itself. In this vein, the UPD sits closer to Paul Robinson’s more recent proposal for a ‘general mitigation provision’ which recognises both situational and capacity-based grounds as potential excusing conditions, and explicitly imbeds a normative inquiry into the proposed defence.Footnote 7 However, as discussed in Chapter 8, the blueprint is offered with knowledge of the fact that different jurisdictions will have divergent normative preferences as well as process and evidential requirements, which will impact definitional approaches.
Moreover, diminished responsibility is deemed favourable to loss of control or provocation as the basis of the UPD because it has the farther reach of the partial defences. Diminished responsibility at present includes impairment of both rational and cognitive capacities, and its basis is not necessarily related to the actions of other parties. Provocation/loss of control, on the other hand, has a very particular origin and complex rationale,Footnote 8 owing to its focus on the actions of the victim, and its categorisation as either partial justification or partial excuse.Footnote 9 Therefore, depending on how it is defined, provocation/loss of control may be included or excluded within the UPD, as addressed in more detail in Chapter 8. Accordingly, this form of partial excuse is not central to my argument in this chapter. Finally, drawing from the approach and terminology of the doctrine of diminished responsibility in its present form also provides a useful gauge for the court’s potential reception of a UPD in practice.
It is worth noting, however, that though diminished responsibility serves as a valuable reference point for the UPD, it is insufficient in its current mode to meet the requirements of the Real Person Approach (RPA) as described in Part II. Even if the defence was to be applied to all offence categories in its present form, its scope is problematic because it is restricted to biological and psychological conditions and does not (formally, at least) permit the consideration of emotional and/or social circumstances in impeding responsibility. This stance stymies the advancement of the RPA at culpability evaluation because it fails to recognise the impact of social factors on individual behaviour. In addition, the basis of the diminished responsibility doctrine is largely framed in terms of ‘abnormality’ of mind or mental functioning; in other words, that there must be something ‘far wrong’ with somebody to avail of the defence.Footnote 10 While there is a need to differentiate defendants who can bring a defence from those who cannot,Footnote 11 the categorisation of the former group as ‘abnormal’ is both damaging and limiting, and falls foul of the understanding of universality afforded to the defence as outlined in Chapter 5.
The juxtaposition of the concept of abnormality with that of normality is deeply engrained in the criminal law.Footnote 12 As such, abnormality is a legal construct and its interpretation can be capricious in nature, changing across time in response to emerging scientific knowledge and social sensibilities. As Norrie opines: ‘[W]hat is abnormal depends upon social perception, and therefore upon a socio-political label being stuck upon it.’Footnote 13 Though not given a scientific definition in law, a classification of abnormality still supports a medical model of labelling that locates the source of the mental illness within the psyche of the individual,Footnote 14 which can lead to stigmatisation, discrimination, and increased likelihood of negative outcomes for the person concerned.Footnote 15 One damaging effect in a legal context may be demonstrated by potentially deserving defendants failing to avail of defences like insanity and diminished responsibility owing to their rejection of the medical model, underpinned by a fear of stigmatisation. For example, there is evidence that some female defendants who were victims of abuse avoid pleading diminished responsibility as they feel that they have had a normal response to an abnormal and traumatic situation.Footnote 16 The abnormality categorisation is also limiting in the sense that there is a hesitancy to bring within the remit of the defence other factors that impede capacity but are perceived of as ‘normal’ in nature. For example, defendants that may have developmental immaturity, as discussed later, are excluded from bringing a diminished responsibility defence because the condition is classed as ‘normal’ and so does not align with the notion of abnormality in the legislation. The position endures notwithstanding the fact that it is uncontroversial to assert that developmental immaturity impairs volitional capacity.Footnote 17 As such, the medicalised construct of diminished responsibility in its present form is at odds with the normalising conception of differentiation inherent in the RPA, and which is exhibited by the more neutral wording of the UPD as outlined in Chapter 8.
The Diminished Responsibility Defence
The diminished responsibility defence has long endured heavy criticism on account of its ambiguous nature.Footnote 18 Attempts at clarity and modernisation have focused on the further medicalisation of the doctrine,Footnote 19 and a tightening of the causal link between the defendant’s condition and the offence.Footnote 20 Conversely, arguments for its expansion have met with concerns about ‘an evaluative free for all’.Footnote 21 This section argues that with such ambiguity comes a flexibility of interpretation that has remained constant in practice notwithstanding the reinforcement of the medical model in statute. Thus, for the most part, the behaviour of the court indicates a commitment to the normative origins of the defence and the need to recognise all relevant factors, not just psychiatric, that impact on a defendant’s culpability for the purposes of partial exculpation. This approach finds support in Timothy Endicott’s critique of precision in law. Endicott argues that while setting clear proscriptions might appear appropriate, like a speed limit for driving offences which may be beneficial for the purposes of a deterrence rationale, for example this logic may not suit all cases.Footnote 22 Thus, in more complex normative assessments, Endicott suggests that less precision can mean a more appropriate response, for example, where a vague standard can work to assign the function of resolving a particular issue to a more appropriate entity.Footnote 23 As such, it is arguable that the jury (or judge) is the most appropriate arbiter of community norms in cases involving more complex questions of culpability determination, as envisaged by diminished responsibility and, indeed, the UPD. With this in mind, let’s examine more closely the standard terminology and what it might mean for the proposed reform.
Abnormality of Mind/Mental Functioning
Definitions of the diminished responsibility defence employ psychologically orientated wording that – either explicitly or implicitly – places the presence of a diagnosable mental condition at the time of the wrongful act at the core of whether the defendant is entitled to a finding of reduced culpability. For example, the partial defence in the Scottish jurisdiction has retained the common law term ‘abnormality of mind’ under the 2010 Act,Footnote 24 Northern Ireland and England and Wales employ the term ‘abnormality of mental functioning’,Footnote 25 and in the Irish jurisdiction, the 2006 Act requires evidence of a ‘mental disorder’ at the time of the crime.Footnote 26
Though generally non-prescriptive in legislation, the interpretation of abnormality tends to rely heavily on an expert psychiatrist to give evidence of a formal diagnosis. The level of reliance on a medical model in this context varies across the relevant jurisdictions, ranging from England and Wales and Northern Ireland as the most medicalised version, followed closely by Ireland, to Scotland as the least medicalised. The 2009 Act in England and Wales replaced ‘abnormality of mind’ with ‘abnormality of mental functioning’, reflecting the desire for a more ‘medically precise’ plea in order to cater to the requirements of psychiatric experts,Footnote 27 and to ‘standardise the application of the test’.Footnote 28 There was a perception amongst scholars that this development would lead to a narrowing of the defence;Footnote 29 however, Mackay’s empirical work suggests that this predication is not a certainty.Footnote 30 Though his more recent examination of CPS files indicates an increase in murder convictions, the reason for this is more likely to do with the fact that more cases are going before the jury.Footnote 31 As such, there is some doubt about the extent to which the medicalisation of the defence has materialised in practice, particularly given that the hinge upon which the abnormality is evaluated remains normative.
Though reliant on scientific validation, the state of mind of the defendant at the time of the defence is ultimately a matter of law and not expert opinion.Footnote 32 Across the jurisdictions, the abnormality is largely based on the defendant’s volitional and/or cognitive capacity.Footnote 33 In England and Wales, abnormality of mental functioning relates to three specified abilities under the 2009 Act; the defendant’s capacity to understand, to judge, and to control their actions.Footnote 34 Notwithstanding the turn towards the medicalisation of the defence in this jurisdiction, very little has been said about these abilities, prompting Mackay to contemplate ‘whether the impairment factors in the new s. 2 are psychiatric in the manner which is clearly the case for “recognised medical condition”’.Footnote 35 These abilities remain informed by the common law, and in particular, the case of R. v. Byrne,Footnote 36 where Lord Parker CJ said that ‘abnormality of mind’ was considerably wider than the concept of ‘defect of reason’ under the M’Naghten Rules. He went on to hold that the term was:
wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will-power to control his physical acts in accordance with that rational judgment.Footnote 37
Though Lord Parker’s words clearly form the basis of the new legislative abilities (albeit with the omission of the reference to ‘whether an act is right or wrong’), case law suggests that they should be read with the ‘psychiatric tenor of the whole section’ in mind, including in relation to the expert giving an opinion on the ultimate issue.Footnote 38 However, as psychiatrists themselves attest, there is no consensus on the meaning ‘abnormality of mental functioning’ in psychiatric practice.Footnote 39 Indeed, Nathan goes so far as to recommend that ‘caution should be exercised in offering evidence on the presence of an issue for which there is not an agreed clinical definition’.Footnote 40 He further advises that experts adopt an understanding of the term ‘mental state’, as the nearest psychiatric equivalent to ‘abnormality of mental functioning’, when considering whether or not the defendant’s state of mind was disturbed, and disturbed for the purposes of amounting to abnormality of mental functioning under the 2009 Act.Footnote 41
Looking more closely at the three abilities (to understand, to judge, and to control actions) suggests a stronger normative, rather than medical, underpinning to the law which has not changed to any great degree since the new legislation. For example, the first limb, ‘understanding the nature of D’s conduct’, continues to garner confusion.Footnote 42 Hallett and Mackay both point to its similarity to the insanity defence under M’Naghten, and suggest it is akin to the defendant’s ability to appreciate the nature and quality of the act. It has a moral property that Hallett suggests supports its consideration as a matter for the jury.Footnote 43 His point is bolstered by the fact that Mackay and Mitchell’s study suggests that experts tend to avoid using this limb in giving an opinion on abnormality. For example, the authors found that the ability to understand one’s conduct was the least commonly referenced in expert reports reviewed, at 41.8 per cent, and there were no cases where this limb was cited as the basis of an abnormality by itself.Footnote 44
Forming a rational judgement was the most frequently cited ability in Mackay and Mitchell’s study, at 78.2 per cent of reports.Footnote 45 As a result, this particular capacity is of significance to psychiatrists when considering the impact of the abnormality on the defendant’s conduct.Footnote 46 Yet the notion of rationality falls outside psychiatric nosology,Footnote 47 as the Law Commission alludes to with the following statement: ‘[t]he capacity to be rational needs to be understood as encompassing all that goes on in the mind, incorporating the interplay between the abilities to think, to believe and to experience feelings’.Footnote 48 Some commentators would go further, arguing that rationality is best categorised as a cultural, and therefore normative, concept as opposed to purely scientific.Footnote 49 Case law has also emphasised that the question of rationality is inherently a moral one.Footnote 50
The third limb, the ability to exercise self-control, was referenced by 70 per cent of the expert reports in Mackay and Mitchell’s study.Footnote 51 This concept was also elucidated in the decision in Byrne, as set out previously.Footnote 52 The primary issue with the Byrne criteria which section 52 fails to clarify, however, is the ‘irresistible impulse’ element, in that the difficulties and uncertainties which deterred judges from allowing the irresistible impulse defence under the M’Naghten Rules in the first place, still remain.Footnote 53 As Lord Parker C. J. opined:
[T]he step between ‘he did not resist his impulse’ and ‘he could not resist his impulse’ is … one which is incapable of scientific proof … there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses.Footnote 54
The point has been echoed more recently by the Law Commission and academic commentators,Footnote 55 with the result that, as Hallett remarks, ‘[i]f an impairment of self-control is difficult to prove scientifically, it is less of a psychiatric issue and more a question for the jury’.Footnote 56 The framing of volitional capacity as a normative question is further supported when we consider its role as part of the loss-of-control test which replaced provocation under section 54 of the 2009 Act. The interpretation of the concept of loss of control under section 54 entrusts the jury with the ability to recognise a lack of self-control, yet the interpretation of loss of control under section 52 of the same Act assumes the need for psychiatric testimony on the matter. Hallett makes the point that this duality of interpretation creates a ‘legal fiction’,Footnote 57 which potentially undermines the legitimacy of both tests. For, while psychiatric evidence may bear on educating a jury on whether or not a particular aspect of a disorder involves loss of self-control, if juries in a provocation case are trusted to recognise a defendant’s loss of control,Footnote 58 it supports the case that juries in a diminished responsibility case ought to be afforded the same trust. Of course, what distinguishes the two defences, as implied by the court in R. v. Rejmanski,Footnote 59 is the origin of the loss of control, emphasising the contradictions and confusions that emerge as a result of the law’s propensity to differentiate the normal from the abnormal.
The UPD Approach
The UPD values the role of assessing the capacity of the individual as central to maintaining alignment with the present dominant approach to determinations of culpability, as discussed in more detail in Chapter 7. In line with present reading of this part of the defence, the blueprint to follow in Chapter 8 fore-fronts the normative nature of such capacity assessment by emphasising its place as the excusing condition on which the defence pivots. Support for this position can be garnered from Morse’s proposal for a general partial excuse which targets individuals who have a mental disorder that does not meet the high bar set by the insanity defence, or is out with homicide, and so does not qualify for a partial defence (though he also acknowledges as an excusing condition nonculpable hard choice occasioned by threat of harm).Footnote 60 Morse’s core contribution for present purposes is his insistence on the central role of the excusing condition in determining the validity of criminal excuses, over and above appeals to more particularised syndromes or pathologies. His account of partial excuse seeks to avoid the pitfalls of the medical model of abnormality, and instead centres on the question of impaired rationality, allowing him to avoid the murkier territory of causation. He writes: ‘What the delusional defender and the child have in common is not “pathological causation”; they have in common the absence of full capacity for rationality. Irrationality is the genuine excusing condition that is operative.’Footnote 61
Morse’s excusing condition amounts to either compulsion (a conventional account of duress) or the absence (or reduction) of rational capacity which he characterises as ‘normative competence’: ‘rationality is required for responsibility, and nonculpable irrationality or lack of normative competence is an excusing condition.’Footnote 62 For Morse, though he acknowledges that the capacity for rationality is ‘a congeries of perceptual, cognitive, and affective abilities’, his overall construct of normative competence elevates impaired rational capacity as an excusing condition, above all others.Footnote 63 His explanation of rational capacity reveals support for a standard reasons-responsiveness account, as explored in further detail in Chapter 4, when he says: ‘[T]he agent has the normative competence to understand and to be guided by the reasons that support a moral prohibition that we accept.’Footnote 64 Notably, he does not endorse the idea of volition as an excusing condition in itself; rather, he argues that volitional control deficit is more likely to form part of the question around establishing intention, and that it also may be understood within the context of rational capacity deficit claims.Footnote 65 Morse also appears to frame impulsivity more as an unfortunate character trait than a basis for excuse.Footnote 66 Moreover, he alludes to the relevance of emotion ‘the ability to empathize and to feel guilt or some other reflexive reactive emotion’,Footnote 67 as an affective ability related to rational capacity. As such, Morse’s account is structurally helpful but too narrow in scope to meet the requirements of the RPA. This is reflected by the fact that though he recognises that his proposal has the potential to be used beyond mental disorder–type conditions, because of the emphasis on the normative excusing condition, he is generally reluctant for it to be used as a vehicle for wider structural claims, like a poverty-type defence.Footnote 68
Morse’s understanding of normative competence has been fleshed out in the literature, however. The work of Lambert showcases how the GPR may be deployed to facilitate situational factors that bear on culpability in her adaptation of Morse’s general partial excuse to accommodate a scarcity/poverty defence. Lambert explains how a scarcity mindset, or the ‘subjective experience of having less than you feel you need’,Footnote 69 impacts aspects of both cognitive capacity and executive control, and so her understanding of excusing conditions more explicitly includes both cognitive and volitional impairments.Footnote 70 In addition, Coppola’s understanding of normative competence is broader than Morse and Lambert in that it amounts to ‘the relevant mental capacities that are necessary for culpability’.Footnote 71 Coppola sheds light on the lack of attention afforded to the role of emotion in culpability determinations and argues that it has as much a place as cognition in guiding behaviour.Footnote 72 Thus, for Coppola, ‘the legal determination that an individual is mentally capable should also – and more accurately – rest on the individual’s capacity for emotionally understanding or appreciating the moral significance of his or her conduct’.Footnote 73 While Coppola admits the meaning of emotional appreciation is not always clear,Footnote 74 she puts forward a convincing argument for its inclusion as an excusing condition based on an extensive evaluation of scholarship on emotional capacity. In summary, Coppola’s definition of emotional capacity amounts to:
the capacity to care for the interests of other human beings, the capacity to engage in the moral evaluation of one’s self and experience moral emotions, such as guilt, shame, remorse, and resentment, the capacity to internalise the normative expectations of others, the capacity to respond to moral norms as a motivation for one’s conduct, and the capacity to self-identify with moral norms. Collectively, emotional capacity is mostly framed in moral terms as a capacity to feel the significance of moral norms (eg, to self-identify with moral norms and be vulnerable to feelings of shame, guilt, and remorse when failing to conform one’s conduct in accordance with them).Footnote 75
In light of the preceding discussion, the UPD also disavows the use of terms like ‘abnormality’ given their propensity to dehumanise and so to contribute to the pathogenic vulnerability of the accused. And while the UPD too accepts the centrality of the accused’s capacity as the basis of the excusing condition, the RPA demands that it embrace a broader understanding of that capacity that reflects a more authentic account of personhood, as developed in Chapter 2. In this regard, it would propose the retention of a term like ‘mental functioning’ but ensure that it is interpreted in a more generous way than the present doctrine, so as to include emotional, as well as cognitive and volitional, capacity, and to understand those capacities as interdependent.
The Basis of a Defence: A Medical Diagnosis?
A formal trend involving government and core stakeholders towards pathologising the defence is particularly evident in England and Wales and Northern Ireland, with the introduction of the ‘recognised medical condition’ requirement under the 2009 Act. Previously, the law of diminished responsibility under s. 2 of the 1957 Act specified conditions of ‘arrested or retarded development of mind or any inherent causes or induced by disease or injury’ as the basis of the ‘abnormality of mind’ requirement. The wording was essentially non-medical and was rarely remarked upon by the courts or by experts.Footnote 76 The somewhat loose interpretation of the wording by the courts was designated a ‘benign conspiracy’Footnote 77 which stretched the notion of ‘abnormality of mind’ to enable a verdict to meet the requirements of justice in the case.Footnote 78 Yet fears around the defence being ‘grossly abused,Footnote 79 accusations of ‘the smuggling in of mercy’,Footnote 80 and concerns about showing leniency to the ‘highly stressed killer’, in addition to broader criticisms concerning the wording of the defence,Footnote 81 led to the listed conditions being removed and replaced with the term ‘recognised medical condition’ under the 2009 Act. The Royal College of Psychiatrists supported this change, commenting that the introduction of such a restriction would ‘ensure that any such defence was grounded in valid medical diagnosis’ / ‘encourage reference within expert evidence to diagnosis in terms of one or two of the accepted international classificatory systems of mental conditions (WHO ICD10 and APA DSM) without explicitly writing those systems into the legislation’ / ‘avoid individual doctors offering idiosyncratic “diagnoses” as the basis for a plea of diminished responsibility’.Footnote 82 The shift towards medicalising the defence is further reinforced by subsequent case law, for instance, in R. v. Brennan where the Court of Appeal asserted that the criteria under the 2009 Act relates ‘entirely to psychiatric matters’.Footnote 83
Notwithstanding the endorsement by government and experts of a medical model of diminished responsibility, however, observations of the law in practice indicate a sustained flexibility in terms of the variety and nature of the conditions that have formed the basis of a successful defence in England and Wales. Mitchell’s 1997 study highlighted that the term ‘abnormality of mind’ under the 1957 Act was deemed broad enough to include conditions like neurotic disorders, premenstrual syndrome, sexual deviation, and battered spouse syndrome.Footnote 84 Mackay and Mitchell’s 2017 study,Footnote 85 perhaps unsurprisingly, shows that the most frequent primary diagnoses since the implementation of the 2009 Act are established mental disorders, namely schizophrenia, depression, personality disorder,Footnote 86 and psychosis.Footnote 87 However, it remains the case that other more controversial diagnoses or circumstances continue to be relied upon by defendants – for example, addiction, post-traumatic stress disorder, and mercy killing.
The defence in Ireland has a significantly shorter history than its neighbouring jurisdictions, as it did not have a common law antecedent prior to the introduction of the doctrine under the 2006 Act. It was introduced at a time when s. 2 in England and Wales was being criticised as overly broad which may have contributed to the more stringent intention underlying the notion of ‘mental disorder’ in the Irish definition, in addition to Ireland’s more conservative judicial approach. For example, referring to the 2002 Bill which led to the 2006 Act, the Law Reform Commission states that it is likely that psychopathy does not fall within the scope of section 6.Footnote 88 However, the Irish version still retains some potential for flexibility within the definition of ‘mental disorder’ given its reference to the common law concept of ‘disease of the mind’.Footnote 89 In practice, the court’s interpretation of ‘mental disorder’ under the 2006 Act has largely sustained a medicalised model, accepting conditions such as depersonalisation disorder, schizo-affective disorder, and dementia, though excluding personality disorder,Footnote 90 and alcoholism.Footnote 91
Scotland, where the doctrine originated, has bucked the trend towards medicalising the defence in recent years. Prior to the landmark case of Galbraith, it was assumed that diminished responsibility in Scotland depended upon a finding that the accused had a mental illness or disease, but this is no longer necessary,Footnote 92 with the result that the reach of the plea has been widened significantly.Footnote 93 However, it is worth noting that this stance ought to be viewed in light of the fact that the defence of provocation in this jurisdiction is restricted to violence or reasonable belief of violence on the part of the accused, in addition to sexual infidelity, with provocation by words alone not available in the context of a murder charge.Footnote 94 Immediacy remains a requirement, and so cases of cumulative provocation in Scotland are more likely to be dealt with via diminished responsibility, or subject to a more informal plea negotiation in the context of culpable homicide.Footnote 95 Though it is noteworthy that this position is presently under review by the Law Commission and is likely to change due to criticism pertaining to provocation in a domestic abuse context in particular.Footnote 96 At present, however, the restrictive nature of provocation suggests a greater requirement for a flexible diminished responsibility option. The Law Commission’s recommendations in respect of diminished responsibility were taken on board by the Scottish Executive and implemented by the Criminal Justice and Licensing (Scotland) Act 2010.Footnote 97 Section 168 inserts the following definition into section 51B of the Criminal Procedure (Scotland) Act 1995:
A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.
The lack of medical terminology within the definition further suggests a broad approach.
In practice, the position in Scotland is the most flexible of the jurisdictions under review in terms of the conditions that amount to ‘abnormality of mind’. In Galbraith, the Court of Appeal conducted an extensive analysis of the nature of mental condition that is required in order to permit the defence,Footnote 98 and found that the following conditions have formed the basis of a defence since the case of Dingwall in 1867; sunstroke, epilepsy, delirium tremens, mental impairment, depression, endocrine disorders, side effects of medication, and also a recognised abnormality arising from sexual or other forms of abuse. It can be ‘congenital or derive from an organic condition, from some psychotic illness, such as schizophrenia or severe depression, or from the psychological effects of severe trauma’.Footnote 99 The Court went on to clarify that the condition must be recognised by the ‘appropriate science’, and expert evidence is not limited to those with a medical qualification; professions such as psychologists could also give evidence. The Court in McLeod v. H.M. Advocate also indicated that sexual abuse, physical abuse, and post-traumatic stress disorder can bring about mental abnormality. Crichton et al.’s study of successful diminished responsibility cases since Galbraith also points to more unexpected circumstances satisfying the mental condition element in Scotland, particularly: dependent personality disorder, battered person’s syndrome,Footnote 100 ‘significant emotional problems’, adjustment disorder following a cancer diagnosis, and an abnormal grief reaction. In addition, non-psychiatric factors were successful in one case where it was deemed that the defendant had not shown the ‘wicked recklessness’ necessary for murder. In respect of ‘psychopathic’ personality disorder, Crichton et al.’s study suggests that this condition will not be accepted unless the accused can show that an aspect of the condition may be understood in the context of past abuse.Footnote 101
Reflecting on these findings in tandem, we might expect to see established psychiatric diagnoses like schizophrenia and psychosis, for example, as forming an acceptable basis for the defence of diminished responsibility, particularly in light of the fact that it is informed by a capacity-based approach to excuse as the dominant theory of criminal responsibility,Footnote 102 as discussed in more detail in Chapter 7. In addition, owing to the psychologically orientated wording of the defence generally, it would seem to counter the intention of the various legislative definitions if conditions or circumstances extraneous to the psychology of the accused were to form the basis of a defence. However, as evidenced earlier, in practice there is a tendency to include conditions that have a penumbral quality, as between psychological and social conditions. This more nuanced approach is understandable in light of the fact that it can be difficult, in some instances, to separate a condition from its context, as reflected in a recent tendency in the psychiatric literature demonstrating the ethnocentric nature of diagnostic manuals such as the DSM-5, and underscoring the need for such classificatory tools to pay greater heed to the context and culture inherent in mental illness.Footnote 103 For example, post-traumatic stress disorder, by its nature, takes into account a previous event or circumstance in diagnostic terms. As Slovenko asserts, ‘PTSD is one of the few psychiatric disorders listed in the DSM-III that are defined in part by the environment.’Footnote 104 Other conditions that are difficult to disentangle from a defendant’s wider circumstances include addiction, trauma, and developmental immaturity. A brief account follows of how the law presently deals with each.
Addiction is increasingly recognised as a social problem,Footnote 105 and so stands at the fringes of the diminished responsibility defence because it invites information beyond a purely capacity-based framework in evaluating blameworthiness. The law deals with this complex issue by distinguishing voluntary from involuntary intoxication and focusing on the effect on the individual defendant. The position in England and Wales, Northern Ireland, and now Scotland is that a defendant cannot rely on voluntary acute intoxication to form the basis of a diminished responsibility defence.Footnote 106 However, the House of Lords in Dietschmann held that intoxication does not preclude the defence where the accused had an unrelated mental abnormality.Footnote 107 In the subsequent case of R. v. Wood,Footnote 108 the court held that the jury, in addressing a plea of diminished responsibility in the context of alcohol dependency syndrome, must consider whether it had been established that the accused’s disorder was of such a degree that it constituted an ‘abnormality of mind’ from a disease or illness, and, if so, whether his mental responsibility for his actions at the time of the killing was substantially impaired as a result.Footnote 109 The case of R. v. StewartFootnote 110 reaffirms the rationale behind Wood as fairly reflecting developments in contemporary understanding of alcohol dependency syndrome in the context of diminished responsibility, which could, even in the absence of visible brain damage, constitute an abnormality of mind from a disease or illness. On that basis, the approach taken in R. v. TandyFootnote 111 was deemed too rigid.Footnote 112 Though the more recent case of R. v. FoyFootnote 113 does not change this position, it is worth pointing out here that, notwithstanding a psychotic episode, the circumstances were deemed not to meet the requirements of recognised medical condition owing to the fact that the defendant was also voluntarily intoxicated at the time.Footnote 114 In Ireland, intoxication is specifically excluded from the definition of ‘mental disorder’ under the 2006 Act, however, it is unclear whether this includes both voluntary and involuntary intoxication as is the case with addiction.Footnote 115
In addition, the notion of reduced culpability on the basis of past trauma or abuse is largely unpopular, particularly since Dershowitz coined the term ‘abuse excuse’,Footnote 116 the catchy phrase imbuing the concept with suspicion and a sense that the defendant is ‘playing the victim card’ in order to ‘get off lightly’. However, recent studies have shown how trauma can impair to a significant degree the capacity of the accused to control their actions in certain circumstances, and criminal justice agencies are beginning to take note.Footnote 117 Though experiencing a traumatic event may seem ‘off the books’ for the purposes of a diminished responsibility defence, it has formed the basis of a defence in Scotland, where courts have supported defences based on past/childhood abuse or trauma, battered person’s syndrome,Footnote 118 and sexual abuse. Childhood trauma has also been used to support a diminished capacity defence in the United States,Footnote 119 and there are scholars that argue in its favour as a factor that ought to reduce culpability.Footnote 120
Developmental immaturity has also caused controversy in terms of whether it should amount to a defence in the criminal law.Footnote 121 Though it was recommended by the Law Commission of England and Wales in 2005 that it ought to be capable of forming the basis of a diminished responsibility defence,Footnote 122 and received some support from academia and core stakeholders,Footnote 123 the proposal was ultimately sidelined in the context of considering reform of the partial defence.Footnote 124 Elsewhere the Commission recommended instead a wider examination of the law of murder as it relates to children and young people.Footnote 125 Reluctance to engage with the condition in the context of diminished responsibility fails to take seriously a large body of neuroscientific evidence, which shows that adolescent neurobiological immaturity is an uncontroversial fact.Footnote 126 There is strong support for the contention that the brain continues to mature until the early twenties particularly in relation to the following factors: ‘impulsivity, judgment, planning for the future, foresight of consequences’ – characteristics that are integral to the assessment of an individual’s moral culpability.Footnote 127 In practice, immaturity alone is unlikely to be deemed sufficient to amount to the basis of a diminished responsibility defence without a specific diagnosed mental disorder.Footnote 128 However, it is noteworthy that the English Sentencing Council has inserted developmental immaturity as a mitigating factor for diminished responsibility at the post-verdict stage.Footnote 129
The UPD Approach
Overall, the courts have demonstrated some flexibility in their interpretation of what is deemed appropriate to form the basis of a diminished responsibility defence. This attitude hints at an appetite for a more humane, and nuanced, approach to blame evaluation than was perhaps intended by lawmakers. As discussed in Chapter 5, the universality of the UPD is reflected in its inclusion of a wider range of conditions and circumstances within the defence. Notwithstanding the stigmatising terminology used in the Scottish definition, it best captures the spirit of the RPA because it represents the least medicalised version as the basis of an excusing condition . This approach is also reflected in Morse’s motivation for his general partial excuse which seeks to provide a solution to the issue of ‘new syndrome’ excuses.Footnote 130 Instead of creating new excuse definitions for each syndrome that might present as a potential basis for an excusing condition, Morse’s proposal would accommodate such excuses within the remit of an adjusted framework that still relies on rational capacity. The UPD does similar, but with a broader scope in relation to mental functioning as outlined earlier, and with the inclusion of a wider situational context (reflected in the term ‘circumstance’ in the proposed blueprint outlined in Chapter 8). Moving away from readily accepted mental disorders – this approach ensures that those conditions that might be described as straddling the condition/circumstance divide, like addiction, trauma, and developmental immaturity – are clearly accommodated within the UPD, which accords with the flexible approach afforded to these categories in practice. Moreover, in terms of wider circumstance, it is envisaged that the UPD could apply to an immediate context, but also to more enduring prior factors such as particular life experience, familial circumstances, and cultural contexts, in order to reflect the dynamic nature of agency as mandated by the RPA.Footnote 131 The more challenging of these, like cultural defences and provocation in the context of domestic abuse, are considered further in Chapter 8.
Of course, it is not the basis of the defence alone that decides the fate of the accused; the nature and impact of a condition on the defendant plays a significant role in assessments of culpability for the purposes of diminished responsibility.
Substantial Impairment
In making their assessment, the jury/judge is required to pay heed to the way in which the condition impacted the defendant’s rational and/or volitional capacity. This step is significant in terms of demonstrating that the definition of ‘substantial impairment’ is given a common usage meaning by the courts, and also that the question of the defendant’s impairment is ultimately for the jury to decide upon, and not the expert, though this assertion has been challenged more recently in England and Wales. Because this step is not restricted by scientific evidence, however, it supports the view that the core component of partial excuse is normative in nature, and so has the potential to be more responsive to cultural shifts and wider scientific developments than the law is currently.
England and Wales, Northern Ireland and Scotland all make reference in one form or another to ‘substantial impairment’ of the defendant’s capacities.Footnote 132 Over the years, ‘substantial’ has been interpreted to mean more than ‘trivial or minimal’ impairment,Footnote 133 or moderate impairment,Footnote 134 but does not have to amount to borderline insanity.Footnote 135 Post the 2009 Act, the case of R. v. BrownFootnote 136 confirmed that the phrase is not intended to be any different from its meaning under the old law,Footnote 137 though it makes reference to the defendant’s capacities rather than their moral responsibility. The threshold of substantial impairment was reviewed thoroughly by the Supreme Court in the case of R. v. Golds, where Lord Hughes confirmed that the term is to be conferred with its ordinary meaning and not to be defined by the trial judge.Footnote 138 The only exception to this direction is where, in the view of the judge, there is a likelihood that the jury might misunderstand what is meant by the term. If that is the case, then the judge should instruct the jury that ‘whilst the impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice’.Footnote 139 The Court found that the trial judge in Golds had correctly left the issue with the jury and they found the defendant guilty of murder, notwithstanding uncontested evidence from the psychiatric experts as to the defendant’s psychotic episode at the time of the offence. Though the judgment in Golds appears to clarify the question of interpretation regarding ‘substantial impairment’ in terms of leaving it to the jury, there is some concern that it resulted in a narrowing of the defence owing to Lord Hughes’ understanding of substantial as ‘significant and appreciable’ or ‘considerable’.Footnote 140 That said, Lord Hughes also endorsed the Scots law approach in Galbraith, where the Appeal Court employs a common-sense psychology approach to language, saying that there must have been something ‘far wrong’ with the accused, which affected the way he acted.Footnote 141 Whether Golds has altered the threshold of substantial impairment in a meaningful way remains to be seen; nevertheless, its interpretation rests as a question for the jury in the first instance.
Perhaps the more confusing element of Golds, however, stems from Lord Hughes’ interpretation of the role of the psychiatrist in interpreting the ‘substantial impairment’ component. The Supreme Court held that the question for the jury in this case was not about the meaning of the word substantial as discussed previously, but rather whether the accused had been in the grip of a psychotic episode at all at the time of the act, notwithstanding the fact that the experts agreed that the defendant had a medical condition that substantially impaired his abilities. This latter point appears to endorse expert opinion on the question of ‘substantial impairment’ despite the fact that the question has been recognised by the Law Commission as a question for the jury.Footnote 142 Indeed, Lord Hughes goes on to say that the offering of an opinion on the issue is ‘a matter for individual judgment’ on the part of the expert themselves.Footnote 143 This view appears to reinforce an assumption apparently held by the psychiatric profession that they are required to express an opinion on this issue, even though it is traditionally a matter for the jury.Footnote 144 And, indeed, perhaps it is inevitable that an expert would provide evidence on the impact and degree of the impairment, and perhaps the addition of this information is useful to the jury in making a decision. What is important to emphasise, however, is that the ultimate question is for the jury alone to address and, as such, they are entitled to override psychiatric evidence (even where uncontested) if they are of the view that the defendant is sufficiently morally blameworthy to be convicted of murder, and not manslaughter.
The UPD Approach
Overall, the UPD recognises the value of assessing the level of impairment experienced by the defendant given that the UPD does not result in a full acquittal. The term is sufficiently flexible to delegate to the jury the normative task of assessing the impairment as a matter of degree in a given case. That said, it may be appropriate for the jury’s decision to be informed by expert evidence in some cases, as explored in a later section and in Chapter 8.
The Causal Link
Though remaining ambiguous in the new defences in Scotland and Ireland, the law in England and Wales and Northern Ireland endorses the Law Commission’s recommendation that the mental condition element must be shown to be ‘an explanation’ for the defendant’s conduct, thus ensuring that there is an appropriate connection between the abnormality of mental functioning and the killing.Footnote 145 This particular amendment seeks to tackle the criticism that it has never been entirely clear whether, under the existing law, the abnormality of mind/mental functioning must, in some sense, ‘cause’ the defendant to kill.Footnote 146 While certainly resolving the question as to whether causation is a requirement of a successful diminished responsibility defence, the definition fails to shed any light on the difficulties inherent in proving the link between the defendant’s conduct and the ‘abnormality of mental functioning’. Furthermore, from Mackay and Mitchell’s study, it appears that consideration of this aspect is relatively hit and miss,Footnote 147 prompting the authors to tentatively conclude that ‘report-writers are frequently not addressing the “explanation” requirement under the new law’.Footnote 148 Underpinning this reluctance is a reality that few wish to voice regarding the burden of untangling the ‘abnormal’ behaviour from the normal. As Hallett puts it, ‘Although psychiatric evidence may play an important role, demonstrating that a mental disorder had a causative role in the killing will often be an impossible task for anyone.’Footnote 149 In other words, just as it is impossible for the jury to get inside the mind of the individual at the time of the offence, so too is it impossible for the expert psychiatrist.
The UPD Approach
The blueprint in Chapter 8 proposes two points of connection on the basis that linking certain features of the defence is more likely to assuage fears of determinism, as discussed in more detail in developing the bounded causal theory in Chapter 7. The first connection is between the condition/circumstance and the impaired mental functioning, and the second is between the impaired mental functioning and the defendant’s conduct. It is recommended that the first requires greater specificity in approach than the second; though, again, given the normative nature of the evaluation, a more flexible approach is recommended, as supported by Robinson’s proposal for a general mitigation at the pre-verdict stage.Footnote 150 Robinson argues that given the individual is still deemed criminally responsible, it is less important to establish the causal link and so the question rather ought to be ‘whether the disturbance at the time of the offense makes the offender noticeably less blameworthy than an offender committing the same offense without the disturbance’.Footnote 151
Similarly, Lambert provides a useful example in this regard in promulgating her poverty/scarcity defence. Her argument asserts that ‘one cannot raise a claim of GPR solely on grounds that one is poor; there must be some further link to an excusing condition.’Footnote 152 As such, she outlines the requirement to show a ‘direct situational link’ between poverty and cognition in order for a partial defence to ‘break the stalemate’ between deprivation-based defences and questions of criminal responsibility.Footnote 153 For Lambert’s proposal, this would come in the form of evidencing how ‘scarcity’ can leave a largely consistent mark on those subject to it in that, notwithstanding the cause, a scarcity mindset results in a form of mental ‘tunnelling’ or ‘hyper-focused attention’ directed towards the source of the scarcity,Footnote 154 resulting in the person experiencing a psychological burden or ‘bandwidth tax’ such that they have a reduced cognitive and volitional capacity.Footnote 155 It is envisaged that this overall approach can work with other scenarios beyond poverty too, provided a connection is made. Finally, in terms of feasibility, it is noteworthy that the Irish defence (discussed further below) does not draw out a specific requirement for a causal link between the mental disorder and an impairment, rather only requiring that the impairment did not reach the level required of the insanity defence.Footnote 156 How this might be evidenced in the UPD is discussed further in Chapter 8.
The Persistence of Normativity and the Limitations of Psychiatric Evidence
An analysis of the law relating to diminished responsibility reveals a trend towards pathologising the defence through the use of medicalised wording, particularly in England and Wales and in Ireland. The advancement of a medical model may well be informed by valid fears regarding the extent to which the defence is used to partially excuse those who do not have a clear psychiatric diagnosis, for example, the mercy killer;Footnote 157 however, these fears do not appear to be mirrored to the same extent in the operation of the defence. Indeed, the preceding analysis reveals a broader and more pragmatic approach taken to the interpretation of diminished responsibility than one might surmise from the legislative definitions of the defence. Though experts may overstep the mark, and courts may even encourage them to do so on occasion, it remains the case that the normative nature of the defence persists, as demonstrated by the strong legal underpinning of abnormality of mind/mental functioning; the range of conditions that are considered to come within a defence; the ordinary usage recommendation in respect of substantial impairment; and the lack of enthusiasm in practice about the causal link requirement.
The prominence of normativity in the defence is innately connected to the standing of the jury, whose role is not merely fact-finding, but also to resolve multifarious moral questions in accordance with the law.Footnote 158 This task is particularly significant in the context of criminal excuses where, according to Raphael, ‘juries are the best-suited institutional actors for capturing societal norms and shared moral values regarding criminal wrongdoing’.Footnote 159 In coming to their decision, the jury hears testimony from expert psychiatrists on the components of diminished responsibility to varying degrees, as outlined previously. Psychiatry’s contribution in this manner is a boon to the law because it has, for one thing, resulted in a move away from arbitrary intuition-based evaluations by the jury towards empirically informed assessments of a defendant’s mental state, and beyond.Footnote 160 In this way, psychiatry has assisted decision-makers with the interpretation of legislation, and has informed the development of criminal excuses to a significant extent.Footnote 161 Notwithstanding the more positive aspects of the union between law and psychiatry,Footnote 162 however, the increasing reliance on a medical model of diminished responsibility risks undermining the normative nature of the defence. This move is problematic because it is pushing scientific testimony beyond its competency: for, while an expert’s opinion might bring clarity to a defendant’s mental condition and how it might manifest in their behaviour, they are not in the business of making a moral judgement on the defendant’s blameworthiness. Accordingly, and without detracting from the influence of empirical science to questions of substantive law and evidence, it is necessary to acknowledge the limitations of such contributions in the context of determining criminal culpability, in particular, under two themes. The first theme relates to the nature of psychiatric testimony itself, and the second considers what is lost by the law by way of its moral development in relying exclusively on psychiatric diagnoses to inform the basis of the defence.
The first theme reflects on the nature of psychiatric testimony which appears, at times, shrouded in a seemingly irreproachable aura, in part stemming from a wider phenomenon of ‘system arrogance’ evident in writings on medical culture in recent years.Footnote 163 In addition, the impression of authority arguably derives from the high expectation placed on experts by the court to deliver certainty with authoritative force. For example, Walker contends that most judges, counsel, and even juries tend to consider a psychiatric diagnosis as the ‘exact equivalent’ of a physician.Footnote 164 Such an approach, he surmises, is bolstered by the way the expert is required to express themselves in court: ‘[h]e must achieve an objective which does not appeal to him by gymnastics for which he is not trained’.Footnote 165 What is required of them is a clear, professional, and confident statement regarding the elements of the defence, up to and occasionally including the ultimate question. For Walker, then, the psychiatrist is therefore ‘tempted – one might also say invited – to slap an impressive label on the accused in order to ensure that he arrives at what seems to [him] to be the right destination’.Footnote 166 This quiet interchange between the law and the expert is perhaps reflective of the fact that there exists a level of mistrust by lawmakers and practitioners regarding the average juror’s ability to discern what is required of them. As McEwan notes: ‘[T]he law of evidence represents an uneasy compromise between the insistence that fact-finders apply their own common sense to questions of fact and the nagging doubt harboured by lawyers that many questions of fact are beyond them.’Footnote 167 Psychiatry, though a branch of medical science, is not equivalent to physical medicine, however, and there is a sense that this is not adequately recognised by the law. For instance, Fulford points to the fact that psychiatrists diagnose and characterise mental disorders on the basis of experiences and behaviours, as opposed to underlying causes, in contrast to physical medicine.Footnote 168 Further, psychiatrists themselves have expressed unease about testifying in respect of some of the components of the defence. Notwithstanding recent developments in the law, psychiatrists argue that ‘there is no sound psychiatric methodology’ to address some of the questions they face; for example, in relation to the connection between a defendant’s behaviour at the time of the killing and their disorder.Footnote 169 As such, there is evidence of a gap between what is expected of the psychiatric expert in court and what they are capable of delivering.
The division between expectation and reality is borne out in terms of diagnostic classification, clinical process, and interpretation of legal criteria by practitioners. There is a lingering sense of unease in parts of the scientific world that, notwithstanding a major upheaval to practice approach under the DSM-III towards more objective categorisation, the diagnostic modelling upon which psychiatric evidence relies is inherently problematic, with one author recently describing it as a ‘disingenuous categorical system’.Footnote 170 For example, one line of study argues that the current model fails to adequately recognise the role of trauma in mental health issues.Footnote 171 Another criticises attempts by the DSM-5 to address accusations of ethnocentricity, arguing that the manual continues to favour biological psychiatry to the detriment of cross-cultural perspectives.Footnote 172 Additionally, the process which clinicians undertake to arrive at a diagnosis has raised questions in terms of its validity and consistency, with one commentator noting that ‘the unreliability of psychiatric diagnosis remains a serious problem’.Footnote 173 Finally, diagnostic problems are also evident in the courtroom on occasion,Footnote 174 where experts can clash over the primacy of a particular diagnostic manual, or engage in ‘unseemly battles’ where professional views diverge.Footnote 175
The second theme considers the reliance of the law on psychiatric testimony from a negative perspective – in other words, what factors are overlooked when attention is given only to psychiatry as the means of informing the basis of a diminished responsibility defence, and how is moral progress in the law thus impeded? Part II outlined and explored the impact of the narrow view of personhood inherent in the dominant rational agency paradigm underpinning the criminal law. This restrictive view is reinforced by the contribution of psychiatric testimony, which can also be accused of ‘covering up’ the link between social context and criminogenic behaviour,Footnote 176 thus placing criminality solely in the psyche of the defendant rather than recognising it as a societal problem. Given its contribution to pathogenic vulnerability, the RPA recommends that the criminal law itself ought to pay heed to crime as a social problem, as explained in Chapter 4, in particular. Suffice it to say here, then, that individualisation serves to isolate the defendant and consequently their mental condition, resulting in an incomplete account of their moral story for the purposes of evaluating blameworthiness,Footnote 177 for example, by excluding evidence relating to the impact of prior factors that derive from broader aetiologies, such as social and economic deprivation and adverse childhood experiences.Footnote 178 As a result, the criminal law sabotages the advancement of social justice in the realm of culpability evaluation by failing to recognise agency as vulnerable.
Furthermore, using expert psychiatric testimony to bolster an individualistic account leads to a problem of legitimacy, by occasionally revealing a fissure between the law ‘on the books’ and the law in practice. This issue is highlighted by the way in which the law uses psychiatric evidence to support its conclusions, as is demonstrated by the fact that psychiatric testimony occasionally overreaches not just the legal criteria of mental condition defences but its own criteria of what constitutes mental disorder or abnormality of mind/mental functioning where a compassionate or merciful response to crime is required.Footnote 179 For example, in the case of mercy killing, the Criminal Law Revision Committee commented that ‘legal and medical consciences are stretched to bring about a verdict of manslaughter by diminished responsibility’.Footnote 180 Even under the 2009 legislation, it would appear to be the case that the new law in England and Wales is ‘sufficiently malleable so as to meet, where necessary, the needs of those mercy killers who do not satisfy the defence on their own merits’.Footnote 181 So, in attempting to meet the justice requirements of a case, the law essentially undermines its own legitimacy, by creating, as Gibson notes, ‘a new disconnect between what the law says and what it does’.Footnote 182 This threat can be overcome by either realigning practice with principle, or vice versa. To marry practice to principle, the law would need to take a more stringent approach to how it assesses the basis of a diminished responsibility defence, for example, legislation could specifically define the diagnoses that can form the basis of a defence. Alternatively, to marry principle to practice, the law would need to reflect the need for flexibility informed by a broader evidence base in legislation, for example, by allowing consideration of the wider (and relevant) circumstances of the defendant at the point of exculpation. Needless to say, the latter approach is recommended in terms of moving towards a criminal law informed by the RPA, in light of its more contextual underpinning.
But the question remains, is the jury up to the normative task of evaluating blameworthiness? A fear underpinning jury decision-making is framed in terms of the notion of the ‘sympathetic jury’. For example, Williams has said that ‘on the flimsiest of evidence juries will avoid murder convictions in sympathetic cases’.Footnote 183 However, this assumption does not chime with evidence that suggests that juries are more likely to convict of murder in the context of diminished responsibility than if the defence is pleaded and dealt with by a judge.Footnote 184 This point is made more pertinent by the fact that murder convictions in this context appear to be increasing following the introduction of the 2009 Act.Footnote 185 Further, juries have been known, albeit infrequently, to go against the opinion of experts and endorse a murder conviction, even where consensus exists between the experts as to the defendant’s diagnoses and its impact.Footnote 186 The low success rate of the insanity defence is also evidence of jury reluctance to exculpate.Footnote 187 This evidence suggests that juries are no pushover.
In the face of advancing scientific discoveries relating to impulse control, emotion, behaviour, and cognition,Footnote 188 in addition to evidential ambiguity pertaining to psychiatric testimony, it becomes more important to underscore the conceptual hinge on which the defence of diminished responsibility rests. For, it is the central focus on the capacity of the accused that acts as a filter in respect of the potential aetiology of the defence, and any evidence that pertains to it. With others,Footnote 189 I argue that the defence is ultimately a moral evaluation of the defendant’s blameworthiness by the jury,Footnote 190 and not just a ‘psychiatric matter’, as per the judgment in Brennan.Footnote 191
Fore-fronting the moral question does not necessarily involve displacing the role of the expert, however. Rather, taking the role of the jury more seriously should involve an increase in the relevant information available to them through access to a broader field of expert testimony in order to give credence to their power to decide on the ultimate issue. This shift may go some way towards realigning the power as between jury and expert, which has historically leant towards the latter. For example, Ward distinguishes diminished responsibility for its elevation of the expert from the role of ‘adviser’ to one of ‘authority’ since its introduction in England and Wales:Footnote 192
The courtroom … is a far from ideal forum in which to conduct a subtle moral evaluation of a defendant’s character. But so long as such an evaluation has to be made, the expert can best assist the jury to make it by acting as an adviser rather than an authority.Footnote 193
From a more recent perspective, let us not permit intentions around the medicalisation of the defence to detract from the proper role of the jury as fact-finder, influenced, though not displaced, by the role of the expert. Both sides are agreed on this, by and large. As Nathan opines: ‘In framing their opinion, the psychiatrist needs to remember that the questions posed by this partial defence are matters of fact that are entirely within the jury’s province. Psychiatric evidence may be influential, but it is not determinative.’Footnote 194 Similarly, from a legal perspective, Ormerod and Laird emphasise that the significance of expert evidence does not remove the ultimate issue from the jury; instead, it facilitates more evidence-informed decision-making.Footnote 195
To this end, the UPD explicitly highlights the normative function of the jury through requiring them to reflect on the moral appropriateness of their decision. The practical challenges that such an approach may face are discussed in greater detail in Chapter 8.
Conclusion
This chapter has provided an account of diminished responsibility as a template for the UPD proposal. It has unpacked key components of the defence and shown how its operation reveals a penumbral approach to its interpretation, both in a legal and occasionally medical context, through the inclusion of conditions that sit at the edge of the intended meaning of ‘recognised medical condition’ and ‘abnormality of mind/mental functioning’. Further, the chapter has raised concerns about attaching too formally to psychiatric expert testimony as a means of shaping evaluations about moral culpability in the context of partial excuse. Indeed, the flexible approach of the courts in interpreting the defence suggests a stomach for moral complexity, enough, perhaps, to say that a broader causal basis for a defence is not as antagonistic to the present doctrine as one might assume. As such, the UPD builds upon the more generous instincts of practice by recognising a broader basis to the defence that adheres to the reality of complex causality in the lives of defendants, but in a way that aligns with the existing capacity-based account. Moreover, this chapter has argued for the reclamation of the normative nature of the test as a means of providing the necessary constraints on the decision-maker in order to avoid the pitfalls of an ‘evaluative free for all’. Finally, the analysis serves as a springboard for the development in Chapter 7 of a bounded causal theory as a rationale for partial excuse, and the proposed UPD – one that provides a more nuanced explanation of the doctrine given that some of the conditions accepted in practice are not adequately represented by a capacity-based account alone.
Introduction
This chapter outlines a bounded causal theory to provide a rationale for partial excuse that reflects more closely its flexible boundaries in practice, as explored in Chapter 6, and to legitimise the proposal for a Universal Partial Defence (UPD) that follows in Chapter 8, as an expanded version of the status quo. To do so, however, it is necessary to overcome three major objections to the concept of causal theory in the context of criminal excuses: the fear of a universal legal excuse, the fact that not all those with a similar circumstance to the defendant commit crime, and the problem of proving the link between circumstance and criminal act.
In Part II, the Real Person Approach (RPA) diagnosed that the criminal law is running a moral and social justice deficit given its lack of recognition of significant social factors (like past trauma and environmental and social deprivation) in evaluations of blameworthiness, factors that have been shown to impede the executive capacities of individuals making it more difficult for many to avoid wrongdoing.Footnote 1 However, seeking to expand the basis of exculpation is contentious because to do so is to challenge the core legitimacy of the criminal law. For, to include circumstance in considerations of culpability is to promote a causal understanding of criminal action which is underpinned by a deterministic explanation of human behaviour. A causal theory based on full determinism is problematic in the eyes of the law because it undermines the basic premise of criminal responsibility: that we can and should hold the individual responsible for their wrongful action. If such action is shown to be caused by factors beyond the person, then the law loses its moral authority to ascribe individualised blame. This chapter seeks to bridge the chasm between these seemingly disparate standpoints by creating space, through a bounded causal rationale, for the recognition of social factors at the point of exculpation in the criminal law (enhancing its RPA justice credentials), but in a way that does not collapse into absolute determinism (thus maintaining its moral authority and feasibility).
A related issue that appears to undermine a causal approach is the fact that not all people from deprived backgrounds, and not all those who have suffered trauma in childhood, commit crime. Yet those with adverse childhood experiences and those with deprived backgrounds are disproportionately represented in our criminal justice system. So how do we examine the claims of such defendants without (again) appearing to upend the entire criminal law enterprise? Falk recognises the significance of such claims in her critique of ‘novel’ defences,Footnote 2 when she says that such defences and their future incarnations ‘present a challenge to our system of justice’.Footnote 3 Her response to this challenge is to use such defences to ‘continually adjust the values of our nation to the current realities of our lives’.Footnote 4 In this light, I argue that we can recalibrate societal norms towards the lived experience of those most often before the courts through the medium of the UPD, by virtue of its partiality, which both facilitates the consideration of vulnerability (e.g. to social factors like severe deprivation) by reducing blame where appropriate, while still protecting (a more generous reading of) the traditional concept of agency in the law, by holding the individual responsible for their wrongful conduct and rejecting complete exculpation.
A third core objection to causal theory as an explanation for criminal defences relates to the issue of evidence. For, how is it possible to show that an aspect of a person’s circumstance accounts for their criminal act? Even if an expert can attest to the fact that a circumstance – for example, extreme deprivation – impacts the volitional capacity of a defendant, how can we tell that it impacted them in the instance of the criminal offence in question? And how can we be certain that their impulse control was overcome at the time of the act, and it was not merely a case of poor decision-making? These conundrums are not exclusive to the question of the inclusion of circumstance, however; the inability to read minds endures as a thorn in the side of the criminal law when it comes to questions of mens rea and exculpation. Yet the law operates regardless, tolerating uncertainties about a defendant’s mindset at a fleeting moment in time, and forming decisions based on a normative benchmark informed by expert testimony where appropriate. This chapter explores the feasibility of adapting this practice to facilitate the requirements of the UPD.
The chapter begins by outlining the bounded causal account and demonstrating how it provides a fuller explanation of the existing partial defence of diminished responsibility (notwithstanding the marginalised position of causal theory itself within criminal law discourses). The UPD aims to deepen the role of partial excuse in the law through the inclusion of circumstance, so it relies on causal theory (at least in part) to legitimise its elevated status. The next section interrogates the three major objections to causal theory, as outlined, finding that the conceptual reasons to exclude circumstance at the point of exculpation are somewhat soluble. The chapter then goes on to show how a bounded causal theory, as manifested in the UPD, may be used to provide a more realistic, informed, and nuanced account of the person at the point of exculpation, in accordance with the aims of the RPA.
Bounded Causal Theory as an Explanation for the Diminished-Responsibility Defence
The guiding methodology of this book is to take a more bespoke approach to areas where injustice may arise in the criminal law. As such, analysing partial excuse as a discrete category allows us to employ the language and ideas developed in the excuse literature with a fresh perspective. Thus, it is possible to agree with Horder and Lacey that different rationales, such as capacity, choice, character, and risk, may all be present across various defences and, indeed, can be evidenced in partial excuse.Footnote 5 Further, we can concur with Farmer and Ramsay that such nuanced accounts are demonstrative of the criminal law in its socio-historical context.Footnote 6 The aim here, then, is to highlight more pointedly that, based on an analysis of the doctrine of diminished responsibility in practice as set out in Chapter 6, dominant explanations of excuse pay insufficient attention to causal theory as a means of conceptualising the role of circumstance in evaluating the defendant’s blameworthiness in our time and place. This lack of regard, of course, may relate to the fact that proposed excuses that rely more heavily on a causal account – for example, a poverty defence or an abuse excuse – have never gained a foothold in criminal law doctrine, implying that causal explanations are of little relevance here. Indeed, though there was a time when a causal account of excuse was relatively popular,Footnote 7 particularly evidenced by the writings of Bazelon and Delgado,Footnote 8 very little support for the view is found in more recent writings, with most eminent theorists supporting a compatibilist viewpoint and/or openly rejecting a causal account of excuses.Footnote 9 In this section, I argue that causal theory has a role to play in the explanation of partial excuse as it exists in the criminal law, and as exemplified by the operation of the diminished responsibility defence. Though causal explanations may not be formally acknowledged in legislative definitions of the defence, the law in practice demonstrates a propensity to hold both capacity and causal accounts of excuse contemporaneously in assessments of blameworthiness. In line with Horder’s approach of supplementing rather than supplanting,Footnote 10 then, the aim of this chapter is not to supplant capacity theory, but rather to supplement it with a bounded causal account in the particular context of partial excuse.
According to the dominant understanding, excuses act so as to negate the free choice to do wrong which punishment aims to counter.Footnote 11 The implication of ‘voluntariness’ in this account implies a link between theories of capacity and choice with a view to generating a standard of criminal responsibility. The classic statement of this concept was developed by Hart who asserted that ‘[t]hose whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities’. He goes on to say that ‘[w]here these capacities and opportunities are absent … the moral protest is that it is morally wrong to punish because “he could not have helped it” or “he could not have done otherwise” or “he had not real choice”’.Footnote 12 The basic scheme offered by Hart separates excuses into two categories – those which involve a denial of the physical or mental attributes which are a precondition of successful and consistent rule-following, and those which involve a denial that the normal conditions under which people with those attributes are expected to conform their behaviour to law subsisted. Thus, insanity, diminished responsibility, and involuntary behaviour involve a denial (or partial denial) of the capacity to conform one’s behaviour to the law. In other words, the actor’s conduct was not the expression of a deliberate choice on his part.Footnote 13 On this approach, then, it is not enough that people act in an antisocial fashion; it must be appropriate to blame them and, moreover, it must be fair to punish them.Footnote 14 As such, the capacity approach is inherently normative in nature.
Diminished responsibility as it stands, then, is built on this capacity-based notion of responsibility which situates the analysis of culpability within the psychology of the defendant. Therefore, it (partially) excuses on the basis of the defendant’s control over their conduct being overborne by a condition internal to them, as supported by medical evidence. This approach speaks to explanations of criminogenic behaviour that are set within an agentic frame. As Honoré puts it: ‘Agents are responsible because the conduct is theirs. They have intervened in the world and changed it. Their behaviour is the cause of that change.’Footnote 15 Yet it is clear from the analysis of the diminished responsibility defence in practice in Chapter 6 that circumstance plays a much more significant, though nuanced, role in explaining criminogenic acts in the law than it presently formally admits. In Chapter 6, it became clear that both fact finders and experts are not immune to stretching the definition of ‘abnormality of mind’ or ‘abnormality of mental function from a recognised medical condition’ where the interests of justice so demand. For example, the experience of trauma in childhood, on the face of it, falls outside the scope of the defence; however, it has featured as relevant to the defence in both Scotland and the US.Footnote 16 Further, and notwithstanding the push by policymakers towards a more medicalised definition in England and Wales, circumstances such as mercy killings continue to be considered in the context of the partial excuse.Footnote 17 Thus, capacity theory alone, as applied to the diminished responsibility defence, fails to account adequately for the courts’ flexible interpretation of the doctrine in practice. Because of the agent-centric nature of the capacity approach, it is unable provide a full explanation for the defendant’s criminal act because criminogenic behaviour set within a broader circumstance frame (e.g. environmental deprivation, childhood trauma, past abuse) is deemed to be excluded from the assessment of culpability.Footnote 18 Such prior factors (though they may be present) ought not to figure in the law’s assessment of the defendant’s conduct, owing to its compatibilist credentials.Footnote 19 Therefore, from the perspective of a real-world philosophical approach,Footnote 20 a more complete evaluation of culpability in the context of diminished responsibility requires making conceptual space for consideration of circumstance, alongside the present dominant capacity-based explanation of partial excuse.
In criminal law theory, accounting for circumstance in evaluations of blameworthiness is largely framed as the promulgation of a causal theory of the criminal law or of a form of ‘causal determinism’.Footnote 21 From a philosophical viewpoint, Corrado explains that:
[a]n event may be said to be caused if conditions prior to it were sufficient, causally, to bring it about. Conditions are causally sufficient if those conditions, together with the appropriate laws of nature, entail the occurrence of the event.Footnote 22
The core problems pertaining to causal theory are discussed in detail in the next section. Suffice it to say here that attempts at recognition of causal theory in criminal doctrine have failed owing to concerns regarding its framing as absolute when applied to doctrine. For example, Bazelon’s proposed ‘rotten social background’ excuse drew considerable criticism because the consequence of a successful defence was acquittal.Footnote 23 I do not stand in opposition to such criticisms but argue, rather, that much of what is problematic with causal theory may be addressed by limiting its reach, so that what may be identified as valuable in a causal understanding of excuse is salvageable. In the context of this book, causal theory is bound in two ways that are discussed in more detail in the sections to follow but are helpful to outline here. First, causal theory is bound by place, in the sense that it is applied discretely to partial excuse, as opposed to accounting for all criminal law excuses, with the result that even where circumstances form part of the culpability determination, a defendant is not acquitted and still retains responsibility for the crime. Second, the theory is bound by its nature through framing it as a partially deterministic practice.Footnote 24 A partially deterministic causal explanation is one with a particularised, as opposed to general, application. In other words, causal explanation is considered in the context of an assessment of a person’s moral blameworthiness at the point of exculpation, as opposed to being applied generally to a class of people. Giving voice to causal theory without silencing the dominant capacity account is possible because causal theory does not claim to be a universal theory of full excuse. Its utility lies in the fact that it can be framed as ‘partially determinist’, in that, as Kaye notes, it does not mandate that all excuses in criminal law have causal explanations; rather, that it simply helps explain some of the criminal law’s excuses where a causal explanation exists.Footnote 25
In lieu of explaining human conduct in solely narrow, agentic terms, then, this chapter argues for a bounded causal theory as an explanation of diminished responsibility in order to account for circumstance, providing a more complete representation of the defence, and a more forthright engagement with the relevant factors that have contributed to an individual’s behaviour. Just as capacity theory benefits from a causal supplement in terms of allowing more knowledge of the defendant to be considered as part of evaluations of blameworthiness, causal theory also benefits from being wedded to a capacity framework. For, the problem with including circumstances under causal theory, of course, is that you cannot hold circumstances responsible for crime: they cannot be put on trial, they cannot be punished, they are, in a retributive sense, ‘weak’.Footnote 26 Its bounded nature, however, means that a relevant circumstance can be held, and its significance examined, at the point of culpability evaluation of a particular defendant, safe in the knowledge that they will not ‘get away with it’. Consequently, an account of partial excuse that acknowledges a place for both capacity and causal theory attends more closely to the practice of the defence, thus bridging the chasm between the medicalised construct of the defence definition and the more flexible operation of the law on the ground. Finally, a bounded causal account of partial excuse is feasible because, as established in Chapter 6, the ultimate test for diminished responsibility is normative in nature, and thus vulnerable to the dominant values of the culture it inhabits. Because the test is not strictly medical, it allows the possibility of causal theory, and not just capacity theory, to explain more fully the defendant’s actions.
The Place of Circumstance in Criminal Law
The flexible interpretation of diminished responsibility in practice bolsters the call for an expanded understanding of partial excuse beyond the confines of a capacity-based approach. A formal reading of the doctrine as it stands, however, cannot make provision for the wider circumstance of the individual in its blame evaluations because to do so would challenge the dominant compatibilist explanation of the criminal law. On the face of it, then, the fact that the inherent structure of the criminal law appears at odds with including circumstance, together with the lack of enthusiasm in the literature for a causal account, suggest considerable conceptual barriers to the UPD. The purpose of this section is to address the core theoretical criticisms of the inclusion of circumstance in evaluations of blameworthiness, as expressed in a causal dialect. The section begins by outlining the compatibilist standpoint. Next, it distinguishes the concept of agency at the point of excuse (exculpation) from the concept of agency at the point of the voluntary act requirement (inculpation), as a justification for limiting the application of causal theory, lending credence to a bounded causal theory as the basis for the UPD.
Compatibilism
The criminal law adheres to the concept of free will in so far as it assumes that individuals have the capacity to control their actions except in the most extreme circumstances.Footnote 27 The law may be described as compatibilist because it concedes to situations which can be framed as deterministic, but only in cases where the will of the individual is overridden by virtue of a complete excusing condition, be it internal or external, for example, mental disorder under the insanity defence or external pressure under the defence of duress.Footnote 28 This position is deemed to reflect the fact that routine existence is largely based on the assumption that individuals are generally responsible for their own actions unless there is some superseding cause which detrimentally affects such responsibility.Footnote 29 Beyond such extreme circumstances, compatibilists assert the view that individuals may be held to blame for behaviour caused by factors beyond their control.Footnote 30 According to Ashworth, such an approach makes acceptable the fundamental proposition that behaviour is not so determined that blame is generally unfair and inappropriate, yet at the same time, in certain circumstances, behaviour may be so strongly determined that the normal presumption of free will may be displaced.Footnote 31
There are two key battlegrounds where philosophical debate regarding the role of voluntarism and determinism in the criminal law plays out. The concept of agency is of particular significance both at the point where an individual is deemed to meet the threshold of subject of the law as assessed through the ‘voluntary act requirement’ (VAR), and again when their culpability is being evaluated in the context of the relevance of a defence. To conflate the notion of agency inherent at each stage brings confusion, because each stage has a distinct purpose, that is, criminalisation and culpability evaluation, respectively.Footnote 32 A primary function of criminalisation is to determine whether or not an individual is an agent for the purposes of holding them responsible for a particular crime, whereas the purpose of culpability evaluation is to assess whether and to what extent we should blame the individual for the act for which the law deems them liable. This section distinguishes the approach of the criminal law to the construct of agency at each point in the criminal responsibility ascription process, with a view to defining more specifically what we mean when we talk about agency at the point of exculpation. This analysis is integral to the containment of causal theory to the realm of excuse, and partial excuse, in particular.
Inculpation Agency versus Exculpation AgencyFootnote 33
The notion of a bounded causal theory requires the construct of the agent at the point of exculpation (exculpation agency) to be distinguished from its conceptualisation at the point of inculpation (inculpation agency). Inculpation agency is underpinned by the VAR principle, which necessitates that an individual was acting freely when they committed a harm in order to justify their inclusion within the boundaries of criminal responsibility in the first instance. An ‘act’ for the purposes of VAR is underpinned by the notion that a human action cannot be caused by a prior event but is a cause in itself.Footnote 34 John Child defines this brand of action theory as interpreting bodily movement as ‘causally basic’, in that ‘it represents the starting point in a causal chain that opens to include complex descriptions’.Footnote 35 In the context of criminal law, those complex descriptions can entail discussion of whether that chain may be broken by an intervening event (the classic ‘swarm of bees’ example) or the voluntary act of a third party in a given case.Footnote 36 But if the court deems the chain of causation intact, the individual is deemed responsible for the act, and so answerable to the criminal law for their actions.Footnote 37 Thus, inculpation agency is construed narrowly, with a view of the individual as an end in themselves, and with a distinct lack of recognition of their social context. The construct of the agent here is therefore ascriptive (as distinct from descriptive at the point of exculpation), in that it is not a true reflection of the reality of a person in a given context, but it is a means of identifying a person as one of the causes of the acts in question.Footnote 38 For example, in the case of Pagett, the law acknowledges that the act of an individual may not be the sole cause or even the main cause; it need only contribute to the harm to give rise to criminal liability.Footnote 39 There is an acknowledgement by the criminal law here, as there is in tort law to a much greater degree, that there can be multiple causes of an outcome.Footnote 40
The notion of ‘voluntary’ at the point of inculpation is not a fixed concept,Footnote 41 however, and its interpretation has been met with confusion at times. In particular, much ambiguity regarding the interpretation of the VAR stems from its conflation with the defence of automatism. Child’s argument for a basic interpretation of the VAR notes that a shift in the debate from ‘defining voluntariness as an essential ingredient of legitimate criminal blame, to defining involuntariness as a route to exculpation’Footnote 42 caused a particular point of conceptual dislocation of the VAR that led to misunderstanding with regards to its core purpose as gatekeeper of criminal liability. He goes on to clarify, ‘Where voluntariness is essential to criminal responsibility, then its absence results in a lack of inculpation (i.e. the VAR) and it is therefore illogical to speak of an exculpating defence.’Footnote 43 Thus, in order to preserve the inculpatory nature of the VAR, Child argues for the retention of a ‘stripped back’ understanding whereby the voluntariness requirement at the inculpation stage is viewed as ‘an essential condition for responsibility’, providing ‘the route through which we can attribute D’s bodily movements and omissions to her as a moral agent, and through which other offence elements may be linked back to D’.Footnote 44 The question that takes place in an inculpatory context is therefore as follows: ‘[W]as D responsible for the movements of his body; was he in sufficient deliberative control to be held responsible for the harms that occurred?’Footnote 45
Inculpation agency is therefore narrow in terms of its construction of the agent (i.e. not accounting for context) but broad in the sense that it casts a wide net of responsibilisation. Abstracting the individual at this stage makes it likely that more individuals are deemed to meet the VAR because the standard of rationality represents a low bar to entry. The dominant legal paradigm maintains that the ability to choose freely is reliant on an individual’s capacity to reason. The bar is set low because the capacity to reason relates to a general ability to act rationally and conform to the requirements of the law. It does not relate to the specific action of the accused on the occasion of the offence. As Honoré puts it, ‘[w]hen we say that someone can do something (has the capacity to do it) we use “can” in a general, not a particular sense: we mean that the person will in general succeed in doing it if they try’.Footnote 46
Exculpatory agency, on the other hand, is more normatively loaded, and better placed to deal with the wider context of a crime once the basic question of inculpation is met. Indeed, as Child notes, conditions that impede freedom, like duress, for example, rather than being taken into account with a view to narrowing liability in the first instance, should be given space in the realm of excuse: ‘[A]ccepting that D has voluntarily acted, has possibly caused harm, but may be excused for that conduct as a result of surrounding circumstances.’Footnote 47 Thus, excuse marks another significant territory wherein the compatibilist line is drawn as between voluntarism and determinism in the criminal law. It is here that the evaluation of personal blameworthiness takes place when it is claimed by the defendant that their free will has been displaced. Voluntarism dominates (though does not destroy) determinism in the criminal law as evidenced by its agent-centric nature, in addition to the narrow scope of excuses available to defendants.Footnote 48 Whether excuses are explained by virtue of capacity theory or character theory or a combination of both, each theory takes an agentic approach to assessments of blame, to the exclusion of causal accounts of behaviour, towing the narrow compatibilist line of the criminal law.
This book accepts the status quo in terms of upholding a narrow, ascriptive, and decontextualised construct of inculpation agency, but in a ‘stripped back’ sense as Child promulgates. Though such a position may appear counter to the book’s mandate to progress an RPA that relies on a relational account of criminal responsibility attribution, a minimalist interpretation of inculpation agency is, in fact, an important aspect of the legitimation of the UPD. A core facet of this project is to promote the UPD in a way that pushes against, yet coheres, with the law as it stands, in order to take a feasible approach to the advancement of justice. Because establishing the doing of the offence is distinct from assessing blameworthiness, it does not automatically follow that a person who is responsible for an act is also culpable in the sense of deserving a blaming response in the criminal law. By acknowledging this distinction, we can keep the legitimacy of the law intact, but do more in the realm of excuse to recognise the wider circumstances that contributed to the accused’s wrongful conduct. Thus, to achieve the aim of this book, we can confine the purely ‘individualist logic’Footnote 49 to considerations of the VAR, but recognise an expanded construct of exculpation agency that acknowledges both rationality and vulnerability at the point of blame attribution, and in the particular context of partial excuse.
Further, by dealing with voluntariness at the point of criminalisation (through the VAR), as distinct from the role of voluntariness at the point of culpability evaluation, we can answer, or set to one side, at least, the much greater, metaphysical question underpinning the voluntarism and determinism debate, as encapsulated by Moore when he says: ‘It makes sense to say that we are determined or that we are free, but to speak of being partly determined or partly free makes as much sense as it does to speak of being partly pregnant’.Footnote 50 This point is dealt with in greater detail in the discussion to follow; however, it is worth mentioning here that recognising the truth of Moore’s statement in the context of inculpation agency – that is, one is either responsible for a criminal act or one is not – allows the advancement of the criminal law at the exculpation stage without undermining its legitimacy. It is in the context of inculpation agency that we can understand the avowal of someone being responsible or not as a binary question in the first instance. Once established as an agent at the inculpatory stage, then, we are now in a position to assess moral blameworthiness. Though there may be operational reasons for the divergent approaches to agency at these two sites,Footnote 51 it is their amalgamation such that inculpatory agency is transposed onto the exculpatory stage, which gives rise to the perception that criminal culpability is absolute, when, in fact, it is normative and, therefore, contingent.
Distinguishing inculpation agency from exculpation agency is also integral to the development of a bounded causal theory which applies to the exculpation stage, and to partial excuse, in particular. Towing an ascriptive, decontextualised line at inculpation makes causal theory redundant at this stage because the basic interpretation of cause in this context derives from the individual. At the exculpation stage, however, I argue that causal theory has a more significant role to play in better understanding the relationship between voluntarism and determinism, thus grounding the expansion of partial excuse without undermining the established structures of responsibility.
Three Objections to Causal Theory
The conceptualisation of causal theory as bounded necessitates the confrontation of three major objections to causal theory more generally: the first is that it leads to a universal legal excuse and so undermines the legitimacy of the criminal law; the second is that it cannot be true because otherwise all people subject to the relevant circumstance would commit crime; and the third revolves around the question of evidence regarding the role of circumstance in the defendant’s conduct. This section addresses each in turn.
Universal (Full) Legal Excuse
The core objection to a causal theory of excuse rests on an assumption that it would lead to a form of blanket defence, or ‘universal legal excuse’,Footnote 52 as Michael Moore puts it. For, to say that all acts (including criminal ones) are caused by prior factors beyond the control of the actor is to undermine the basis of holding people responsible for crime, and thus the legitimacy of the criminal law itself. A prominent critic of causal theory, Moore maintains that the theory relies on ‘the assumption that to find a cause for an action is to find an excuse for that action’.Footnote 53 It follows for Moore, then, that the pervading problem with causal theory lies in its relationship with determinism: ‘[i]f one accepts determinism – the doctrine that every event, including human actions and willings, has a cause – then it is hard to see why everyone is not excused for all actions.’Footnote 54 Applying his reasoning to the legal domain, Moore puts the issue as follows: ‘If one accepts the determinist thesis … and if one believes that causation excuses, then one must believe that moral responsibility is an illusion on which liability to criminal punishment cannot be built.’Footnote 55 The incredulity of such a position for Moore is made plain when he says ‘it surely is unpalatable to think that no one should be punished’.Footnote 56 A similar line of reasoning underpins Stephen Morse’s concept of the fundamental psycho-legal error.Footnote 57 Morse argues that causation alone cannot excuse the defendant of their criminal culpability, because if causation can amount to an excuse, then no one is deserving of blame, so the whole basis of retributive justice is undermined. If the law cannot rely on retributive justice as a means of assessing guilt and innocence, it becomes unable to function in its present form. Indeed, Morse’s criticism of the causal approach so framed finds support in the failure of defences like the ‘rotten social background’ / ‘severe environmental deprivation’ defence or the ‘abuse excuse’, and it is also cited as a reason for the failure of the ‘product’ or ‘Durham’ rule as a test for the insanity defence.Footnote 58
Looking closer at the ‘severe environmental deprivation’ / ‘rotten social background’ defence example (RSB, for ease of reference), the idea of including a social cause within the scope of excuse, despite best efforts of many eminent scholars, has, as Lambert puts it, ‘failed utterly to gain any real world traction’.Footnote 59 A central reason for this failure relates to how the basis of the defence is framed in opposition to the dominant capacity-based rationale of criminal responsibility.Footnote 60 For example, Dressler criticises the RSB defence in terms of its causal-excuse nexus when he says that ‘[c]ausation alone … cannot be the basis for excusing for if a person were to be excused whenever his criminal conduct was caused by some factor over which he had not control, all crime would be excusable’.Footnote 61 Morse sums up the official legal response to the RSB proposal when he says: ‘No convincing theory suggests that deprived offenders are less morally responsible simply because they are deprived and therefore deserve excuse or mitigation on that basis alone.’Footnote 62 Lambert notes that those in favour of the RSB defence respond to this overwhelming criticism by saying that the apparent lack of compatibility points to innate problems with the existing, dominant rationale and call for systemic change.Footnote 63 Though such a stance is commendable, the sheer magnitude of the call results in the inadvertent perpetuation of an unjust status quo in this area.
Further evidence of the problem of equating cause with excuse is borne out by the fate of Judge Bazelon’s controversial ‘product’ test for legal insanity. In Durham,Footnote 64 Bazelon sought to replace the existing ‘right-wrong test’Footnote 65 (i.e. the M’Naghten Rules)Footnote 66 supplemented by the irresistible impulse test for criminal insanity in the District of Columbia,Footnote 67 with a test where an individual could bring a successful defence if they could show that their action was ‘the product of mental disease or defect’.Footnote 68 Bazelon’s core issue with the existing test was that it did not provide a full picture of the defendant’s mindset at the time of the crime, resulting in a deficit of relevant information for the jury to make a fair evaluation.Footnote 69 The purpose of the Durham rule, therefore, was to:
reconcile the rule of responsibility with advances in medical knowledge, and to broaden the class of persons who would be treated instead of punished; more particularly, it was framed to facilitate communication between psychiatric experts and the courts which was being impeded by the pre-existing test.Footnote 70
But was it the equating of cause with excuse that brought the demise of the test? Wanting more information to be included in assessments of evaluation amounted to progress in the field of criminal responsibility attribution, but by completely overriding the question of capacity, the test arguably asked too much of the jury at a normative level. Thus, a lack of guidance in the absence of the capacity test, rather than the inclusion of causal theory itself, was central to the failure of the approach in Durham. As Bazelon himself puts it:
[W]e wanted the jury to decide whether the mental abnormality was too serious and the causal connection too direct to impose guilt in criminal cases. Thus, the jury not only would make factual determinations, but also would fix the legal norm against which the mental condition and its relationship to the behaviour must be measured [emphasis added].Footnote 71
Removing the capacity requirement obscured the normative question for the jury to too great a degree, leaving them adrift with nothing to evaluate but the science. Indeed, this played out as a problem between the role of expert and jury, as Bazelon highlights: ‘Conclusory expert testimony on the “productivity” requirement buried these moral questions and precluded their consideration by the jury.’Footnote 72 The test was later abandoned and replaced with the ALI test.Footnote 73 Pondering its demise, Bazelon lamented the fact that the failure of the rule saw those from a disadvantaged background suffer the most,Footnote 74 commenting that his attempt to expand the insanity defence, rather than creating more problems than it solved,Footnote 75 simply ‘uncovered bullets that society has always refused to bite’.Footnote 76
Reflecting on the failure of the product test, I would argue that it was not the inclusion of broader circumstances through a causal framework that led to its downfall, but doing so at the expense of a capacity test as the normative guide for the jury in assessing culpability. Leaving the jury with the task of ‘fixing the legal norm’ as between the mental condition and the action, as opposed to as between the mental condition and the question of capacity, creates anxiety given the potential consequences of a poorly judged acquittal. For, it is laying too much at the feet of a jury to balance the question of moral responsibility with that of community safety.Footnote 77 Consequently, it is arguably the absolutist nature of the product test, as opposed to the inclusion of more relevant information, which holds the greater significance for present purposes.
Indeed, the semblance of absolutism is deeply problematic to the advancement of causal theory in the criminal law. For, how could the law operate upon an interpretation of human behaviour whereby whatever happens ‘occurs regardless of the aims, desires, and intentions of the actors involved, and that what will happen in the future has already been fixed and we are inexorably reeled in by it’.Footnote 78 Such a fatalistic prospect that speaks to deep-seated anxieties cannot hope to gain traction in the law and so it is doomed to failure,Footnote 79 as Kaye posits: ‘[I]f causal theory were correct, this critique maintains, every human act would be excused; since the criminal law does not excuse every human act, causal theory is an overbroad theory of the excuses.’Footnote 80 However, the absolutist thesis, as assumed by scholars such as Moore and Morse, is not the only interpretation of causal theory.
There is a strong argument to suggest that the absolutist critique of causal theory is based on a misunderstanding of one of its core premises, a problem that can be easily resolved – at least at a notional level. According to Kaye, causal theory can explain a number of criminal law defences (e.g. insanity, duress, automatism) on the basis of two claims: first, ‘the criminal law presumes that some human acts are caused by forces beyond the actor’s control’, and second, ‘the criminal law adheres to the “control principle”, the moral principle that actors cannot be blamed for conduct caused by forces beyond their control’.Footnote 81 Those who denounce causal theory do so on the basis of a modification of the former claim, that is, ‘[t]hey replace the proposition that the criminal law presumes causal accounts of certain acts with the proposition that the criminal law presumes causal accounts of all acts’Footnote 82 [emphasis added]. Kaye acknowledges that, on this interpretation, causal theory is indeed overly broad.Footnote 83 Describing the modification as a ‘brazen revision’,Footnote 84 he maintains that the erroneous interpretation of causal theory as universal to all action may be explained by the fact that theorists simply find it unlikely that the criminal law would assert a partially deterministic position, that is, ‘that some, but not all, human acts are caused by forces beyond the actor’s control’.Footnote 85 However, as Kaye notes, because the criminal law can be partially deterministic, the over-broadness criticism is unsupported. Indeed, Kaye argues that a partially deterministic criminal law is plausible through what he terms ‘provisional determinism’,Footnote 86 thus saving causal theory. His account of provisional determinism amounts to the following: ‘[W]hile we acknowledge that acts can be caused, we resist absolute determinism and evaluate causal accounts as they come to us, one by one. Justifiable prudence makes us provisional and thus partial-determinists.’Footnote 87 This insight is supported by Falk, who cites a lack of successful cases in terms of ‘novel’ defences as evidence that ‘recognition of these defenses will not open the floodgates to untold masses of defendants’.Footnote 88
Kaye’s perception of causal theory, then, relies on the fact that the criminal law is partially deterministic. His standpoint pits him against prominent scholars who deem the notion of partial determinism absurd. Let’s return to Moore’s partial pregnancy dilemma for a moment to illustrate the point. Moore opines that ‘to speak of being partly determined or partly free makes as much sense as to speak of being partly pregnant’.Footnote 89 He goes on to clarify, ‘[f]or the degree determinist, it has to be sensible to ask: how much causation was there? The problem is that such a question seems to make no sense at all’.Footnote 90 Moore’s criticism of partial determinism is based on the polarisation of the concepts of freedom/choice and determinism/cause, following Norval Morris’ assurance that there are ‘degree[s] of freedom of choice on a continuum’.Footnote 91 For degree determinists, the issue is to find what Moore calls the ‘baseline premise’ – ‘where on the freedom/causation continuum responsibility ends and excuse begins’.Footnote 92 He says:
[i]f we imagine free action to be at the low end of the continuum and determined action to be at the high end, we must draw a baseline above which actions are so determined that they must be excused and below which actions are so free that they cannot be excused.Footnote 93
Drawing on the inculpation agency and exculpation agency distinction made in the previous section assists in unpicking Moore’s critique. If we consider Moore’s criticism of partial determinism in the context of inculpation, his point makes sense. The voluntary act requirement operates in law by assuming that causation rests in the free action of the accused, as borne out by their rational decision to commit a wrongful act; their rationality is the seat of the cause. The law will either deem the agent a proper subject or it will not; there remains no such thing as a partial agent or, indeed, a partially pregnant person. However, Moore’s criticism does not travel well to the site of exculpation, where a more fine-grained evaluation of the person’s moral and legal responsibility is borne out in terms of assessing whether or not the agent is deserving of an excuse or partial excuse. At that stage, the law has already categorised the person as an agent; they are already in possession of a positive pregnancy status. However, the fact of that status does not preclude us from making an additional and somewhat distinct, yet no less important, enquiry about the nature of that person’s reproductive autonomy. We might ask, for example, to what extent did the circumstances in which the individual became pregnant impair their cognitive, volitional (and/or emotional) capacity to exercise freedom with regards to their own reproductive decision-making? To what extent, then, did the circumstances of a defendant (with inculpatory agent status) impact their capacity to control their impulses and/or to reason in relation to the commission of the criminal act?
Kaye further attacks arguments against the plausibility of a partially deterministic criminal law by saying that the critics overstate the case against the notion of ‘agent causation’, such that individuals are the source of causes, claiming that the problem is one of a lack of understanding about how actions and events can cause other events in a general sense, rather than a failing of agent-causal theory in particular. On this reading, no one has the answer, and thus, for Kaye, ‘the claim that partial determinism is so philosophically implausible that the criminal law could not possibly embrace it is itself implausible’.Footnote 94 This argument is supported by the framing of law as a practical instrument. Drawing on a more pragmatic view of the structure and agency dilemma from a sociological perspective, we might agree with Pleasants that the concept of determinism does not necessarily entail fatalism: ‘[T]o say of an event Y that it was determined by X is just to say that it was caused by X, or that X featured prominently in its causation.’Footnote 95 Barzun also views the law’s position through a more practical, and therefore partially deterministic, lens when he acknowledges:
Philosophers debate whether all human conduct is determined or not, but when faced with a particular case, under a causal theory of excuse, the judge or jury must decide whether, in this particular case, the defense has adequately shown that the defendant was not the cause of his behaviour.Footnote 96
In this sense, determinism is not fatal to the law, as the voluntary act requirement has already established that the defendant featured in the cause of the outcome. It is in considering the applicability of an excuse, then, that the law recognises the other causes that may have featured in the harmful outcome, which may be assessed in terms of the extent to which they overrode the agent’s free choice as a cause. Accordingly, on this view, we do not need, nor are we likely ever, to solve the metaphysical conundrum of free will versus determinism in order to bring about a more socially progressive criminal law.
Kaye’s second point against the arguments touting the implausibility of partial determinism is from a common sense or folk psychology perspective; the idea that whether or not philosophers agree with it, most of us go about our daily lives ‘in accord with the assumption that metaphysically free human action is possible’.Footnote 97 Kaye claims the critics’ case is overstated but that they are right to point out dangers and uncertainties with absolute determinism, and that it is in light of such dangers that the law is partial, and not absolute. He summarises the anxieties thus:
Absolute determinism threatens our sense of control, our stature in the universe, and even the existence of our self; causal thinking has the potential to degrade our social lives by devaluing others for us and taking away our reactive attitudes, and to corrupt our political culture by leading us into paternalism and totalitarianism; individual causal accounts are daunting to us, both because the specter of absolute determinism looms behind them, and because their unavoidable incompleteness requires us to make a leap of faith if we are to believe them.Footnote 98
In light of these fears, Kaye claims that it is entirely plausible that the criminal law is provisionally, and therefore partially, deterministic, in that ‘we take a cautious approach to causal accounts of human acts – that we take them one by one, that we judge them account by account, that we avoid unnecessary generalization’. On this basis, the over-broadness critique of causal theory is inaccurate: ‘[i]t fails to see that while there may appear to be a slippery slope from particular causal explanations to absolute determinism, we have strong motives to dig in our heels and resist sliding down that slope.’Footnote 99
The fear of the universal (full) legal excuse is therefore countered by an understanding of causal theory as particularised as opposed to generalised. With a narrow reading of agency ascribed at the point of inculpation, we are safe to explore evaluations of blameworthiness upon a scale that looks at cause pertaining to the individual at one end, and cause pertaining to prior circumstance at the other. It is in this space that other causes, deemed not relevant at the point of inculpation, should be considered with a view to evaluating the exculpatory status of a particular defendant, and realising a more authentic account of personhood at blame attribution, as promulgated by the RPA.
The second major complaint against causal theory relates to the preceding debate as between the general and particular but warrants elucidation in its own right.
If a Particular Circumstance Causes Crime, Why Doesn’t Every Individual Subject to that Circumstance Offend?
This argument asserts that we cannot include a particular circumstance, for example, poverty, as a condition of criminal excuse because it does not affect universally, or uniformly, all those who are subject to it. It is a potent objection, of course, because there is truth in it: most people who are living below the poverty line do not engage in criminal conduct.Footnote 100 Yet how do we reconcile this information with the fact that the majority of those involved with the criminal justice system have experienced some form of social deprivation? Paul Robinson resolves the tension by framing the dilemma in terms of the distinction between a correlate and a cause in arguing against the expansion of excuse doctrine.Footnote 101 In the context of a discussion of the RSB defence, he opines: ‘[t]here may be a general correlation between RSB and crime, but a general correlation does not make specific causation.’Footnote 102 He reinforces his argument by equating an RSB excuse to a defence of maleness in light of the fact that the majority of those in prison are men, asking, ‘if we are not prepared to give a defense for “being male,” why would we consider giving an excuse for having an RSB?’Footnote 103 Morse echoes Robinson’s reasoning on the rejection of an expanded excuse doctrine by focusing on the need for something more concrete than a correlation as the basis.Footnote 104 Thus, for Robinson and Morse, it would follow that unless and until the science advances to such a degree as to categorically prove causation in these instances, then the law cannot support the expansion of excuse doctrine to include a poverty defence or, indeed, a maleness defence.
It is possible to overcome this objection, however, on the basis of the overly generalistic nature of the argument, and its failure to account for an integral aspect of criminal responsibility attribution – the individualised evaluation of the defendant’s moral blameworthiness. The point may be demonstrated by considering mental disorder as a basis for an excuse. At present, the law is prepared to give a defence on the grounds of a diagnosis of mental disorder under the insanity defence. However, it does not follow that all those with such a diagnosis are afforded an excuse, as starkly evidenced by the number of people in prison with a diagnosed mental condition.Footnote 105 So, while those who offend have a higher rate of mental disorder than the general population, it does not, of course, follow that all those with a mental disorder offend. Indeed, much work has been done in recent years to counter the conflation of mental illness with criminality.Footnote 106 Yet an insanity defence exists and operates (albeit rarely) in the criminal law. For, under the law, once evidence of the grounds for the excuse (mental disorder) is established (usually with the assistance of expert opinion), the next step is for a jury/judge to evaluate whether or not the effect of that condition on the particular defendant is sufficient to override their moral blameworthiness for the offence under a capacity test, as the excusing condition. Similarly, we might say that though the law does not recognise a maleness defence, notwithstanding a correlation between ownership of a Y chromosome and propensity for criminal conduct,Footnote 107 that is not to say that a person’s sex is ruled out in an assessment of their culpability for the purposes of exculpation. For example, a subjective reading of the defence of provocation requires the jury to consider the sex, and other relevant features, of the defendant in the evaluation of their culpability for the crime, and the way in which different sexes respond to certain circumstances and stimuli is increasingly recognised as integral to a fair assessment of their moral blameworthiness.Footnote 108
So Morse is right in that the presence of a particular condition ‘alone’ is not sufficient in itself to bring about a defence. Indeed, the word ‘alone’ indicates that the factor can be included in an assessment but that other factors must also be taken into account in the evaluation of culpability. In particular, those other factors involve an assessment of whether and to what extent, the condition in question impaired the person’s volitional and/or cognitive capacity, emphasising the role of impact on capacity as the excusing condition, rather than the basis of the defence itself. Further, while Robinson too is correct in identifying a certain level of scepticism about the influence of environment over an individual’s capacity to form their own beliefs and values,Footnote 109 such scepticism is uninformed by the degree to which environment can influence disposition,Footnote 110 and the degree to which certain individuals are more susceptible to influence than others . For example, Falk frames this particular objection to expanding the scope of excuses as a policy issue she terms ‘differential impact’, whereby only some individuals exposed to ‘social toxins’ are so adversely affected by them, that criminal conduct ensues as a result.Footnote 111 Falk references studies that explain differential impact, in this context, which support the claim that some individuals are more susceptible to the impact of a particular adverse situation than others to a degree that reinforces criminal conduct;Footnote 112 relevant factors amounting to their level of exposure and their personal characteristics in terms of responsiveness.Footnote 113
Thus, it may be argued that the objection that excuse may not include social circumstances like poverty because not all poor people commit crime is overly simplistic because it does not account for the need for individualised assessments of blameworthiness in criminal responsibility attribution practices. Therefore, while there may be high rates of poverty, trauma, mental disorder, or even maleness in those who offend, this link is rightly insufficient to constitute a full or partial excuse. Rather, it is the effect of such a condition or circumstance on the capacity of a particular person that is central to a thorough evaluation of blameworthiness. Such an assessment requires as much information as possible in order for the jury/judge to be adequately equipped when determining a defendant’s blameworthiness, however, and so the question of evidence is integral.
The Evidential Issue
Another obstacle to the inclusion of circumstance in the context of exculpation is the question of proof. How can a defendant show that their particular context so impacted their capacity that they ought to be afforded an excuse? For, a defendant wishing to bring an excuse in the criminal law can only ever achieve a successful outcome if they have sufficient evidence to support their claim, and so, the rules of evidence provide us with a robust means of ensuring that a defendant would not simply ‘get away with it’. As discussed in more detail in Chapter 6, in the context of the partial excuse of diminished responsibility, it is the role of the expert witness to proffer evidence of the accused’s condition in order to inform the ultimate decision of the judge/jury. Considering the question of evidence in the context of an expanded partial excuse, and taking the example of a circumstance like deprivation, it is arguable that an expert can feasibly attest to a defendant’s level of poverty through the use of a deprivation index.Footnote 114 Further, many studies support the negative impact of deprivation on the ability of an individual to control their impulses.Footnote 115 The point is, however, that such evidence would need to take the additional step and attest to the impact of deprivation on the impulse control (for example) of the particular defendant and in relation to the commission of the criminal act in question. It is then for the jury or judge to decide on the basis of all relevant evidence, the degree to which the defendant is deserving of a partial excuse. As Falk notes, ‘In the final analysis … can an individual defendant amass sufficient evidence that a particular social toxin affected his conduct to an extent not experienced by others?’Footnote 116 So, while it is plausible that relevant evidence could be provided by a suitable expert as to the effect of a circumstance on the accused, at the heart of the concern remains the need to establish clarity around the classification of the defendant as different somehow, and therefore deserving of leniency. This is not a novel issue, of course, because the law is already concerned with seeking to portray defendants relying on a mental disorder defence as ‘abnormal’ in some way, so as not to upset the business of blame.Footnote 117
At present, then, how is it possible to adequately assess whether someone is sufficiently different to warrant an excuse or partial excuse? Morse, for one, would assert that it is not possible. For Morse, ‘[h]arder and easier choices are arranged along a continuum of choice: there is no scientifically dictated cutting point where legal and moral responsibility begins or ends.’Footnote 118 In other words, there remains no conclusive way to tell whether the accused was incapable of making the decision not to offend, or whether he was capable of making such a decision, but simply made the wrong one. This fundamental difficulty remains the case whether you employ a capacity or character account of excuse. In the context of capacity, for example, an unresolved doubt exposed by this rationale concerns the point at which a person’s capacity or opportunity to conform is sufficiently compromised to render attribution of blame and punishment inappropriate. In Wilson’s view, for instance, if the capacity theory of criminal responsibility is to be at all plausible, it must somehow separate those determinants of our choices which are fairly treated as part of the actor’s authentic choice-making resources and so reflect badly on them, from those which are not and so do not reflect badly on them.Footnote 119
Similarly, assessments of volitional capacity run into difficulty in terms of the cogency of evidence supporting such claims, yet the notion of volitional capacity functions relatively effectively, though not without controversy, in the criminal law.Footnote 120 For example, in England and Wales, the notion of volitional capacity found its way as a basis of a diminished responsibility defence following the decision in Byrne.Footnote 121 Section 52 of the 2009 Act incorporates the Byrne criteria into the legislative definition of the law, which is a sensible move, and certainly a clarification of what is required by the notion of ‘mental responsibility’. The primary issue with the Byrne criteria which section 52 fails to clarify, however, is the ‘irresistible impulse’ element, in that the difficulties and uncertainties which deterred judges from allowing the irresistible impulse defence under the M’Naghten Rules in the first place, still remain.Footnote 122 In this regard, Lord Parker C. J.’s opinion on the issue expressed well over sixty years ago is as pertinent now as it was then:
[T]he step between ‘he did not resist his impulse’ and ‘he could not resist his impulse’ is … one which is incapable of scientific proof … there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses.Footnote 123
If it is still not possible to establish with certainty the link between impeded capacity and a given criminal act, then how does the law operate in terms of evaluating mental disorder defences at present? In the context of irresistible impulse claims, Williams suggests that the courts get past the difficulty of proof by taking a ‘laissez-faire’ attitude to expert opinion;Footnote 124 this attitude is arguably enduring,Footnote 125 and is supported by the analysis in Chapter 6. Notwithstanding the weight of the evidence dilemma, then, the criminal law, in its present form, sustains a functioning system of responsibility and excuse by relying on the normative decision-making capabilities of judge/jury as informed by expert testimony. In doing so, the courts demonstrate an ability to tolerate the discomfort of not knowing for certain the true substance of a person’s mind at a certain point in time and making a decision on the basis of the information before it, notwithstanding. This point is discussed in more detail in the context of the UPD in Chapter 8.
Taken together, the discussion relating to the three core objections to causal theory shows that they are, in fact, conceptually surmountable for the reasons discussed, therefore lending promise to the notion of a bounded causal theory as a rationale for partial excuse and the proposed UPD.
Bounded Causal Theory and the UPD
Causal theory is the language of circumstance in the criminal law and so must be reclaimed in order to legitimise the expansion of the doctrine of partial excuse under the UPD. The theory has been disparaged out of fear of the introduction of absolute determinism in the form of a universal legal excuse which has the potential to undermine the entire criminal law enterprise through the denigration of personal responsibility. Further, its feasibility has been doubted on the basis that not all people who share similar problematic circumstances go on to offend, and it has also met with evidential objections. An enduring reluctance to engage with causal theory, however, means that it has never had adequate opportunity to evolve, arguably resulting in the perpetual stagnation of the advancement of justice in the realm of criminal excuse. Drawing on Kaye’s work, the previous section addresses the core criticisms of causal theory and carves out the foundation of a bounded causal approach which allows for the consideration of circumstance at the point of exculpation without giving way to absolute determinism.
Bounded by place, the causal explanation is confined to partial excuse alone. Relying on a real-world philosophy approach, the first section of this chapter demonstrated how a causal theory supplement provides a more adequate explanation of the partial defence of diminished responsibility as it stands, reflecting more closely the reality of the court’s flexible interpretation of the defence. Considering the application of causal theory through the UPD, a causal lens is integral to accommodating more cohesive explanations for harms that are categorised by an understanding of personhood in relational terms, and without excluding the person as a cause in their own right. In other words, causal theory recognises that some causes can arise from an individual’s rational choice (inculpating them to the criminal law), for example, but it can also recognise that prior circumstances outside of that person can be categorised as significant causes of the outcome also (matters for consideration at exculpation). Further, by supplementing and not supplanting the existing capacity approach as the excusing condition, then, these causes may be filtered through the individual when they are framed as impinging on their (cognitive, volitional, and/or emotional) capacities to such a degree that they should not be held fully responsible. Thus, causal theory attends to the agent in context, supporting a Real Person Approach to blame attribution. Binding causal theory to partial excuse also solves a number of issues underlying the threat of absolutism. In particular, the fact that a successful partial defence is not a complete defence means that the defendant is still held criminally culpable for their act, though in a more precise manner. This frame means that the threat of an exculpatory free-for-all is avoided, and fears regarding the risk of defendants ‘walking free’ are addressed.
Bounded by its nature, causal theory is characterised as a partially deterministic practice, in that explanatory circumstances are considered in the particular context of the defendant’s moral evaluation, as opposed to applying as a general status by which to identify a class of people. This approach meets the universality requirements of the UPD discussed in Chapter 5, and it facilitates a deeper engagement with the defendant’s circumstances by allowing more information to be considered by the decision-maker, but in a ‘safe’ way. In line with the dominant individualised justice paradigm, and the rigours of criminal legal practice, evidence of circumstance must always be considered in the context of its impact on the defendant’s mental functioning under scrutiny before the court. Thus, even if the defendant is proven to have a background involving severe deprivation, abuse, trauma, or addiction, for example, what matters is how those circumstances bear on the person in question, and in the context of the offence, having regard to their own degree of exposure to such circumstances, and their own personal responsiveness to external influences.
Conclusion
A historically reductive account of the relationship between determinism, causal theory, and excuse has overshadowed a deeper engagement with how scientific advancement is applicable to issues of culpability. The effect has been to deprive the community of a criminal law imbedded in the principles of social justice, and the defendant of a more morally precise culpability evaluation. As Barzun puts it:
[t]o dismiss such evidence and argument as external to law, and thus of no concern to judges and lawyers, therefore amounts to short circuiting precisely the debate about the nature of moral responsibility – and hence criminal culpability – that citizens, courts, and policymakers ought to be having.Footnote 126
This chapter has demonstrated that building on the present law relating to partial excuse is a means of using existing ‘materials of the practice’ in a way that advances justice at the site of criminal excuse.Footnote 127 Chapter 8 examines in detail how such materials are adapted for the purposes of the UPD.
