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.
