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The system of the criminal law

  • Victor Tadros (a1)

This paper attempts to analyse the extent to which elements of the criminal law admit uniform definition across offences, and the implications of that question. That debate contributes to recent scholarship on the scope, purpose and content of the general part. I argue that there are elements which can be defined uniformly, elements which cannot be defined uniformly and elements which, although they are subject to variation depending on offence context, ought to be considered in general by the courts. The considerations that are important in thinking about uniformity are outlined in each of these cases. This has implications for the way in which we think about the general part. Generality is a question of both degree and kind. Consequently, the scope, purpose and content of the general part are more complex than has previously been thought. In the final section I sketch some of the implications that this analysis of the general part might have for methodology generally and, in particular, for social theory.

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1. This approach is most clearly evidenced where the criminal law is codified.

2. Gardner, J in Duff, A (ed) Philosophy and the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998).

3. See Gardner, JRationality and the Rule of Law in Offences Against the Person’ [1994] CLJ 502 for a detailed analysis of this kind of argument. The idea, I think, builds on the excellent ‘anti-theoretical’ account of ethics developed by Williams, B in Ethics and the Limits of Philosophy (London: Fontana, 1985).

4. See also Gardner, J and Jung, HMaking Sense of Mens Rea: Antony Duff s Account’ (1991) 11 OJLS 559.

5. In fact, Gardner puts attempts in the ‘auxiliary General Part’ (see n 18 below) which, according to Gardner, is relatively untouched by his analysis, but little reason is given to think that attempts are not susceptible to local principles in exactly the same way as mens rea. Given that rape and murder are characteristically different acts, involving different local principles, Gardner gives no reason why we should expect uniformity in attempted rape and attempted murder. I will analyse this question further below.

6. [1998] 4 All ER 103.

7. Lacey, N in Duff, A (ed) Philosophy and the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998).

8. Lacey, n 7 above, p 48.

9. [1998] 4 All ER 103. For further evidence of the trend, see Lord Mackay's comments on a general test of recklessness in R v Adornako [1995] 1 AC 171 at 188–189. There it is suggested that no general test of recklessness can be established due to the variety of circumstances to which it applies. As we shall see in the context of attempts, that fact does not entail that nothing general can be said about an element.

10. (1986) 83 Cr App R 267.

11. Some examples are A Ashworth Principles of Criminal Law (Oxford: Oxford University Press, 3rd edn. 1999) pp 176–183; Smith, J C Criminal Law (London: Butterworths, 9th edn, 1999) pp 54–60 ; Simester, A P and Sullivan, G R Criminal Law: theory and doctrine (Oxford: Oxford University Press, 2000) pp 120–124 ; Card, R Criminal Law (London: Butterworths, 15th edn. 2001) pp. 62–71.

12. This issue was noted by Smith, n 11 above, pp 59–60.

13. [1998] 4 All ER 103 at 107–108.

14. This is commonly thought to provide the distinction between intention and foresight. For explanation, and analysis of the conceptual ground, see Tadros, VPractical Reasoning and Intentional Action’ (2000) 20 LS 104.

15. Although intending ‘to treat the thing as his own to dispose of regardless of the other's rights’ is sufficient as per s 6(1) of the Theft Act 1968, covering most of the relevant circumstances.

16. Hereafter, OAPA 1861.

17. Simester and Sullivan, n 11 above, assume that it is: p 390. They cite Woollin as authority for that proposition, but the case does not clearly decide that. Ashworth, n 11 above, also assumes it without authority, but refers to his earlier discussion of intention which does not involve cases on s 18. All of that is forgivable as it would be very surprising if a different decision than that in Woollin were made with regard to s 18.

18. The term ‘auxiliary offences’ comes out of Gardner's useful separation out of the ‘auxiliary general part’ which deals with' the automatic or semi-automatic creation of various parasitic modes of criminal liability including inchoate offences and offences of secondary participation. Cf Gardner, n 2 above, p 207.

19. [1985] AC 905.

20. See Shute, S CKnowledge and Belief in the Criminal Law’ in Shute, S and Simester, A P Criminal Law: Doctrines of the General Part (Oxford: Oxford University Press, 2002) for an analysis of how extensive the terms knowledge and belief are in English criminal law.

21. The merits and demerits are briefly discussed in Tadros, n 14 above.

22. See eg Simester, A PWhy Distinguish Intention from Foresight?’ in Simester, A P and Smith, A T H Harm and Culpability (Oxford: Oxford University Press, 1996).

23. This, according to Gardner, n 2 above, p 227, might be a consequence of law's ‘clay-footedness’.

24. Although in this case it may be that nothing definitional follows from the distinction. Given that cases of criminal damage might result in very trivial or very serious harms, it may be that the distinction is best made effective through prosecutorial discretion.

25. Duff, R A Criminal Attempts (Oxford: Oxford University Press, 1996) pp 369–371.

26. On which, see Duff, n 25 above, pp 20–21.

27. As well as in civil law.

28. ‘Knowledge’ that there is a risk is required, not ‘knowledge or belief’ that there is a risk.

29. The concept became important in Mail Newspapers plc v Express Newspapers plc [1987] FSR 90.

30. [1998] 1 Cr App R 91. See J K Mason ‘A Lords’ Eye View of Fetal Status' (1999) 3 Edin LR 246. The Scottish courts have decided that a conviction of death by dangerous driving can result in these circumstances in McCluskey v HMA 1989 SLT 175.

31. R v Mowatt [1968] 1 QB 421.

32. [1998] 1 Cr App R 91 at 106 per Lord Mustill and accepted by Lord Hope of Craighead at 113–114.

33. [1998] 1 Cr App R 91 at 116 per Lord Hope.

34. Lord Mustill, in [1998] I Cr App R 91 at 105, recognised that mens rea requirements are not personalised, but does not seem to see the implications of this.

35. Another doctrine the principles of which appear to be poorly understood by Lord Mustill. The point of the doctrine has nothing to do with coincidence in time. It has to do with whether the actus reus is a manifestation of the mens rea. Hence, if A is driving to B's house with the intent to kill him, and B runs out in front of A's car on the way and is run over, the fact that there is a temporal coincidence of mens rea and actus reus ought not to lead to a conviction for murder. It might be that the death of the child is too far removed from the mens rea to be considered a manifestation of it. Note that Jennifer Temkin, in ‘Pre-Natal Injury, Homicide and the Draft Criminal Code’ [1986] CLJ 414, has argued against such cases on moral grounds, suggesting that the state of mind of the successful abortionist is the same as those who are unsuccessful, but whose acts result in the death of the child once it is born. However, in that argument she seems wedded to the problematic idea that moral assessment is assessment of state of mind, regardless of consequences. For criticism, see Gardner, n 2 above; J Horder ‘A Critique of the Correspondence Principle’ [1995] Crim LR 759 and ‘Questioning the Correspondence Principle - A Reply’ [1999] Crim. LR 206; and V Tadros ‘Recklessness and the Duty to Take Care’ in Shute and Simester. n 20 above.

36. It may be different for crimes of ulterior intent, such as placing gunpowder near a building with intent to do grievous bodily injury contrary to OAPA 1861, s 30. On such crimes in general. see J Horder ‘Crimes of Ulterior Intent’ in Simester and Smith, n 22 above.

37. Though over time, new principles may develop in the light of the rule. For example, the age of 16, as Jeremy Horder has pointed out, has begun to take on special social significance. See ‘How Culpability Can, and Cannot, Be Denied in Under-age Sex Crimes’ [2001] Crim LR 15.

38. And as John Gardner has pointed out, there may be rule of law reasons to be sensitive to the principles, as a familiar moral structure is likely to provide guidance to ordinary citizens in a way that technical rules cannot. See ‘Rationality and the Rule of law in Offences Against the Person’ [1994] CLJ 502.

39. Above, n 25.

40. Criminal Attempts Act 1981, s 1 (1).

41. And there even might be disagreement over what counts as the first or last act in a sequence.

42. Cf Duff, n 25 above, pp 65–66.

43. Duff, n 25 above, p 66.

44. As in R v Campbell (1991) 93 Cr App R 350.

45. Accordingly, it was sufficient in R v Tosti [19971 Crim LR 746 that the defendant had begun fiddling with the lock of the building that he was trying to burgle. As we shall see, a principle as simple as this is unlikely to be sufficiently sensitive to local principles.

46. Contra Ronald Dworkin's famous argument for the one right answer thesis, the most thorough defence of which he provides in ‘Is There Really no Right Answer in Hard Cases?’ in A Matter of Principle (Oxford: Oxford University Press, 1985). Dworkin seems to deny that there are decisions that there are sufficient reasons to permit, but not sufficient reasons to require in law. His argument provides little reason to think that that is true. Even if the law's store of reasons is larger than was once claimed by some positivists, that does not imply that the larger store will help to make reasons more decisive.

47. Statutes sometimes include hypothetical exemplars to achieve the same end. The US Mode Penal Code is an example of this.

48. For my attempt to achieve this cf Tadros, n 35 above.

49. Lacey, n I above, p 48.

50. See V Tadros ‘Insanity and the Capacity for Criminal Responsibility’ (2001) 5 Edin LR 325 for an account in the context of Scots law.

51. G Teubner Law as an Autopoietic System (Oxford: Blackwell, 1993) p 59.

52. At least some philosophers who would call themselves relativists are not committed to claims that are as strong as this. See eg the essays in Harman, G (ed) Explaining Value and Other Essays in Moral Philosophy (Oxford: Oxford University Press, 2000).

53. In the context of defences, J Gardner in ‘Justifications and Reasons’, pp 107–114, suggests that the decision need only be made for one undefeated reason in order to be justified. But that is not clear. Suppose that, in judging an ice-cream competition, John chooses the strawberry over the vanilla. The decision is justifiable because the strawberry is both prettier and tastier than the vanilla. If John chooses the strawberry because it is prettier without tasting it, however, his decision is not justified, despite the fact that he acted for a reason that was undefeated. Surely to call the decision justified, he would have to have considered both its prettiness and its tastiness. Whether this analysis applies to all circumstances is, however, unclear, hence the vagueness of my claim.

54. In fact, some would go even further, suggesting that the demands that like cases are treated alike sometimes requires that unjustifiable decisions are followed. Ronald Dworkin calls those demands the demands of ‘integrity’, a demand that sometimes conflicts with the demands of justice. Cf Law's Empire (London: Fontana, 1986) ch 6. For a critique of Dworkin's taxonomy of political virtues, see J Waldron Law and Disagreement (Oxford: Oxford University Press, 1999) ch 9.

55. A suggestive account of the role of real and imaginary history in philosophical investigation is provided by Bernard Williams in ‘Naturalism and Genealogy’ in Harcourt, E Morality, Reflection and Ideology (Oxford: Oxford University Press, 2000). Williams suggests that some enterprises become unstable under an investigation of their real or imagined history whereas others do not, morality being the central example. It is not clear to me that Williams is right about that. Even if he is, however, given what I have said here, the argument seems inapplicable to law.

56. I have attempted analyses of both recklessness and excuses in these terms, the former in Tadros, n 35 above, the latter in VTadros ‘The Characters of Excuse’ (2001) 21 OJLS 495.

* Many thanks go to Antony Duff, Lindsay Farmer, Sandra Marshall, Saul Miller, Adam Tomkins and an anonymous referee for their insightful and constructive comments.

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