Compassion without respect? Nine fallacies in R. v. Smith

Criminal Law Review

Volumn , Issue AUG., 2001, Pages 623-634

  Gardner, John ^a   Macklem, Timothy ^b  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b KING'S COLLEGE LONDON   (United Kingdom)

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EID: 23044525508     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (39)

1. Luc Thiet Thuan v. R. [1997] A.C. 131 (PC). The evidence in Luc was actually of brain damage rather than mental illness, but the Privy Council treated it as a case of "mental abnormality".
2. Campbell [1997] 1 Cr.App.R. 199 (CA).
3. Including Ahluwalia [1992] 4 All E.R. 889 (CA), Dryden [1995] 4 All E.R. 987 (CA) and Humphreys [1995] 4 All E.R. 1008 (CA).
4. Camplin [1978] A.C. 705 (HL). In this paper we will not stop to consider whether the anomalous treatment of age and sex in Camplin was warranted. It may be thought by some that this was where the rot set in. But we tend not to share this view, and our criticisms of Smith do not depend on it.
5. [1999] Q.B. 1079 (CA).
6. [2000] 3 W.L.R. 654 at 678, per Lord Hoffmann.
7. ibid. at 684, emphasis added.
8. ibid. at 673.
9. Lesbini [1914] 3 K.B. 1116 at 1118 (CCA).
10. [2000] 3 W.L.R. 654 at 682.
11. These capacity-tendencies are often labelled with the ambivalent word "propensity". For more discussion see John Gardner, "The Gist of Excuses" (1998) 1 Buffalo Crim.L.R. 575 at 581-585.
12. [2000] 3 W.L.R. 654 at 678.
13. ibid. at 681 and 682.
14. ibid. at 665.
15. ibid. at 677, per Lord Hoffmann, at 684, per Lord Clyde.
16. ibid. at 712.
17. For recent defences of this view see Neil MacCormick, "Reasonableness and Objectivity" (1999) 74 Notre Dame L.R. 1575
18. and John Gardner, "The Mysterious Case of the Reasonable Person" (2001) 51 U. Toronto L.J. 273.
19. This excellent expression is owed to Simon Gardner, "Instrumentalism and Necessity" (1986) O.J.L.S. 431 at 433.
20. For further explanation see John Gardner, "Justifications and Reasons" in A. P. Simester and A. T. H. Smith (eds), Harm and Culpability (Oxford 1996), 103 at 118-122.
21. Similar points can be made about other substitutes for "reasonable" in the provocation context, e.g. "ordinary". Obviously, the fact that something is widely done or thought or felt (etc.) does not make it reasonable. The vast majority of ordinary people unreasonably overestimate their own driving skills and unreasonably decline to pay a fair rate of income tax. So "ordinariness" in that sense will not suffice as an interpretation of reasonableness. Rather one needs to read the word "ordinary" in the provocation context to mean "reasonably ordinary", i.e. living up to the regular standard of justification applicable to all members of the relevant class (e.g. people, adults) rather than a special standard applicable only to members of some specialised sub-class (e.g. engineers, fathers). In short, it means something like "reasonable, special roles and responsibilities apart". Cf. MacCormick, above n.17, at 1580-1581.
22. Jeremy Horder occasionally courted this mistake in his ground-breaking book Provocation and Responsibility (Oxford, 1992), in which he experimented with the justification-parasitic explanation of excuses relied upon here.
23. For an extremely illuminating and not-far-wrong account of the relationship between humanity and justice, see Tom Campbell, "Humanity before Justice" (1974) 4 British Journal of Political Science 1.
24. [2000] 3 W.L.R. 654 at 678.
25. One can also imagine two statutory defences that overlap, in the sense that some fact-combinations can be pleaded successfully under either. Lord Hoffmann devotes some energy to showing that this is possible. But nobody seriously doubts it. What they doubt is whether conceding such an overlap in respect of ss.2 and 3 would be true to the moral logic of the provisions. This is not to say that they cannot be pleaded as alternatives. It is only to say that they must be pleaded as genuine alternatives, i.e. on the footing of two rival interpretations of the defendant's psychological condition.
26. Of course some so-called "personality disorders" are really just moral vices. They are inculpating rather than exculpating and should not support a s.2 defence any more than they should support a s.3 defence.
27. [2000] 3 W.L.R. 654 at 674.
28. ibid. at 674, citing [1978] A.C. 705 at 717.
29. [2000] 3 W.L.R. 654 at 678. We think he must mean this because the only rival interpretation of this sentence, namely that the jury should apply appropriate standards of behaviour, tells us nothing beyond the analytic truth that the jury should do the right thing. What else should they do?
30. ibid. at 668.
31. ibid. at 668.
32. ibid. at 678.
33. [1978] A.C. 705 at 718.
34. [2000] 3 W.L.R. 654 at 667.
35. [1954] 1 W.L.R. 1119 (HL).
36. This distinction was exactly and influentially stated by Andrew Ashworth in his path-breaking article "The Doctrine of Provocation" (1976) 35 C.L.J. 292. Ashworth's rendition of the distinction was approved by the Privy Council in Luc but has now been disapproved by the House of Lords in Smith [2000] 3 W.L.R. 654 at 673-674, per Lord Hoffmann and at 689, per Lord Clyde.
37. ibid. at 668.
38. We are thinking of the methodologically similar cop-outs in R. v. Reid [1992] 1 W.L.R. 793 (HL) and Woollin [1999] A.C. 82 (HL).
39. "Provocation and Pluralism", forthcoming in the Modern Law Review.