A change of normative position: Determining the contours of culpability in criminal law

New Criminal Law Review

Volumn 11, Issue 2, 2008, Pages 232-256

  Ashworth, Andrew ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 45749101354     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2008.11.2.232     Document Type: Article

References (93)

1. For discussion, see Markus D. Dubber & Mark G. Kelman, American Criminal Law: Cases, Statutes and Comments 399-411 (2005).
2. For discussion, see Joshua Dressler, Understanding Criminal LaW 538-41 (3d ed. 2001).
3. John Gardner, Rationality and the Rule of Law in Offences against the Person, 53 C.L.J. 502 (1994).
4. See, e.g., K.J.M. Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800-1957 (1998)
5. Jeremy Horder, Two Histories and Four Hidden Principles of Mens Rea, 113 L.Q.R. 95 (1997).
6. Coke, 3 Inst. 56; at this time, and certainly for the purposes of The law of manslaughter until the early nineteenth century, the "unlawful act" could be a tort or other civil wrong. See e.g., R.J. Buxton, By Any Unlawful Act, 82 L.Q.R. 174 (1966). In the present context, The discussion win be limited to unlawful acts that were crimes.
7. J.M. Kaye, The Early History of Murder and Manslaughter, 83 L.Q.R. 569, 593 (1967).
8. For discussion, see Buxton, supra note 5.
9. The rules of causation have a significant limiting efffect in English law at some points, but they will not be discussed here. See A.P. Simester & G.R. Sullivan, Criminal Law: Theory and Doctrine ch. 4.2 (2d ed. 2003)
10. Andrew Ashworth, Principles of Criminal Law 122-35 (5th ed. 2006).
11. See supra note 2.
12. David Ormerod, Smith and Hogan Criminal Law 479-479 (11th ed. 2005). Cf. Law Commission, Law Com. No. 304, Murder, Manslaughter and Infanticide (2006) (Eng.).
13. R v. Church [1966] 1 Q.B. 59.
14. It should be noted An them is also a separate type of manslaughter in English law, manslaughter by gross negligence, which may apply to some of these fact situations. Neither that, nor American forms of reckless manslaughter, are discussed further here, in order to focus on the points at issue.
15. Barry Mitchell, Public Perceptions of Homicide and Criminal Justice, 38 Brit. J. Criminology 453, 457-58 (1998)
16. Law Commission, Consultation Paper 177, A New Homicide Act for England and Wales? app. A (2005).
17. The leading sentencing decision is R. v. Coleman, (1991) 13 Crim. App. (S) 508. Compare the offense of causing death by driving while uninsured, disqualified, or unlicensed, introduced by the Road Safety Act 2006 (U.K.). The introduction of the offense is a response to the deep emotions felt by victims' families in these cases, and is supported by reference to prohibited drivers' greater risk of involvement in αccidents." This offense does not require any fault in the manner of the defendant's driving: It is constituted by the defendant's decision to drive when prohibited from doing so, and the fact that death happens to result.
18. See also Victor Tadros, Criminal Responsibility 93-99 (2005).
19. See, e.g., Andrew Ashworth, Principles of Criminal Law 303-05 (1st ed. 1991).
20. Ashworth, supra note 8, at 145-49.
21. This is the case with the offense of gross negligence manslaughter. See supra note 12. For general discussion, see, e.g., Simester & Sullivan, supra note 8, at 149-56
22. Ashworth, supra note 8, at 191-95
23. Tadros, supra note 15, at 95.
24. John Gardner argues that the case for subjective requirements for liability does not flow from the concept of moral autonomy: That concept is only concerned with the capacity to exercise rational will, which makes them responsible agents but does not conclude the question of responsibility for particular conduct or result. John Gardner, On the General Part of the Criminal Law, in Philosophy and the Criminal Law: Principle and Critique 205, 243-44 (Antony Duff ed., 1998).
25. H.L.A. Hart, Punishment and Responsibility 47 (1968).
26. See, e.g., Richard Posner, An Economic Theory of Criminal Law, 85 Colum. L. Rev. 1193 (1985).
27. See, e.g., the troublesome case of Parker, where D slammed down and broke a telephone receiver in a momentary fit of temper. R. v. Parker, (1976) 63 Crim. App. 211.
28. This is the current English law in relation to section 20 of the Offences Against the Person Act 1861.
29. Hart, supra note 20, at 23-24
30. D.A.J. Richards, Rights, Utility and Crime, 3 Crime & Just. 274 (1981).
31. Gardner supra note 19, at 241.
32. Id. at 243.
33. Id.
34. It will be recalled that Gardner holds that the subjective requirements do not flow from the non-Kantian concept of autonomy. See supra note 19.
35. Gardner, supra note 19, at 244.
36. It will be noticed that in the passage quoted Gardner expresses himself broadly: The phrase "enter the realm of criminality" might appear to support the criminal threshold theory. The context suggests that he is advocating moderate constructivism based on families of offenses, as we discuss below.
37. Gardner, supra note 3, at 509.
38. Jeremy Horder, A Critique of the Correspondence Principle, 1995 Crim. L.R. 759, 764.
39. A.P. Simester & G.R. Sullivan, Criminal Law: Theory and Doctrine 226 (2d ed. 2003).
40. William Wilson, Murder and the Structure of Homicide in Rethinking English Homicide Law 21, 40 (Andrew Ashworth & Barry Mitchell eds., 2000).
41. C.M.V. Clarkson, Context and Culpability in Involuntary Manslaughter, in Rethinking English Homicide Law, supra note 35, at 133, 159-60.
42. It is nor clear how John Gardner's insistence on a form of proportionality in sentencing relates to this. See John Gardner, Crime: in Proportion and in Perspective, in Fundamentals of Sentencing Theory 31, 37, 47 (Andrew Ashworth & Martin Wasik eds., 1998).
43. See R.A. Duff, Criminal Attempts 364-65 (1996) (discussing attack and endangerment).
44. R.J. Buxton, By Any Unlawful Act, 82 L.Q.R. 174 (1966).
45. For fuller analysis, see Smith supra note 4,
46. Horder supra note 4.
47. Horder, supra note 33, at 764.
48. The principles of causation may constitute an exception. See supra note 8.
49. Horder, supra note 33, at 764.
50. It is also argued that a key element in explaining the structure of property offenses is the intention to wrong another (in which the concept of dishonesty plays a major part), although the problem of liability for unforeseen consequences has less legal significance there. Compare Gardner, supra note 3, at 510-11.
51. and Horder, supra note 33, at 762, with Barry Mitchell, In Defence of a Principle of Correspondence, 1999 Crim. L.R. 195.
52. See supra part II.
53. Cf. Gardner, supra note 3, at 522 (differentiating between assaults and violence).
54. Cf. R. v. Bainbridge, [1960] I Q.B. 219, Maxwell v. D.P.P. for Northern Ireland, [1978] 3 All E.R. 1140
55. Ashworth, supra note 8, at 425-27.
56. Horder, supra note 4, at 96.
57. R.A. Duff, 'Whose Luck is it Anyway?', paper given at the conference on 'Criminal Liability for Non-Aggressive Death' at the University of Leicester (U.K.), April 2007.
58. Gardner, supra note 3, at 508.
59. See supra text accompanying notes 22, 25.
60. Cf. Gardner, supra note 37 (discussion of a proportionality principle), with Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing 20-21 (2005).
61. Gardner, supra note 19, at 239. For a version of the same argument,
62. see Gardner, supra note 37, at 45 (rejecting the "extremely restrictive account of human agency" that confines enquiries about an actor's blameworthiness to evaluating the actor's perspective ex ante, and arguing instead for an approach that views blameworthiness in respect of the activity (or result) that the actor has brought about).
63. See, e.g., Action and Value in Criminal Law (Stephen Shute, John Gardner, & Jeremy Horder eds., 1993). In particular, see R.A. Duff, Acting, Trying and Criminal Liability, in Action and Value in Criminal Law, supra, at 75
64. Andrew Ashworth, Taking the Consequences, in Action and Value in Criminal Law, supra, at 107
65. Stephen Shute, John Gardner, & Jeremy Horder, Introduction: The Logic of Criminal Law, in Action and Value in Criminal Law, supra, at 8
66. see also Tadros, supra note 15, at 92-93.
67. Cf. supra note 17. The "causing death by" formula may be thought less stigmatic than the term "manslaughter."
68. See supra text accompanying notes 31, 48.
69. See R.A. Duff, Acting, Trying and Criminal Liability, in Action and Value in Criminal Law, supra note 54, at 75, 79
70. Tadros, supra note 15, at 97-98.
71. Horder, supra note 4, at 96.
72. Id. at 107, 111-12.
73. Cf. id. at 112 (criticizing the decision in Mowatt, [1968] 1 Q.B. 421)
74. Horder, supra note 33, at 763, 766.
75. Cf. Horder, supra note 4, at 115 n.106,
76. with Horder, supra note 33, at 764, 769. However, he raises the possibility that manslaughter "is too damning as a label to represent one's criminal responsibility here," and tentatively suggests a label such as "causing death by intentional attack." Id. at 764 n.25.
77. See Law Commission, supra note 10, paras. 3.46-3.49 (proposing a form of unlawful act manslaughter that would slightly narrow the existing law by requiring that D killed someone by committing a criminal act while aware that it involved a serious risk of causing some injury).
78. [1996] 2 Crim. App. (S) 72.
79. The Court of Appeal reduced the sentence from five to two and a half years, so as better to reflect the accidental nature of the death.
80. Cf. Attorney General's Reference No. 43 of 1995 (Burnett) [1996] 2 Crim. App. (S) 74.
81. See Horder, supra note 33, at 764 (arguing that the doctrine would be too crude without some such restriction).
82. The same would apply to any other homicide offense. See Horder, supra note 61
83. see also supra text accompanying note 54.
84. Horder, supra note 33, at 769.
85. But see Horder, supra note 61.
86. Reasoning based on "scope of risk" may intelligibly be used to justify an offense such as causing death by dangerous driving, since causing death lies within the scope of the risk that the lesser offense of dangerous driving warns against. But it is straining the concept to apply the same reasoning to the new offense of causing death by careless driving, introduced by the Road Safety Act 2006 (U.K.).
87. R. v. Forbes, [2002] 2 A.C. 512.
88. It should be noted that one consequence of D's conviction, in addition to six months' imprisonment, was that he was placed on the sex offender's register (now, subject to notification requirements) in virtue of involvement in child pornography. For his unsuccessful attempt to overturn this requirement, see Forbes v. Secretary of State for the Home Department, [2006] EWCA Civ 962.
89. D's admissions would amount to a confession of an attempt to evade a prohibition in respect of the films he thought he was importing.
90. R. v. G., [2006] Crim. L.R. 930. Cf. Jeremy Horder, How Culpability Can, and Cannot, Be Denied in Under-Age Sex Crimes, 2001 Crim. L.R. 15.
91. See supra note 4.
92. See Jeremy Horder, Gross Negligence and Criminal Culpability, 47 U. Toronto L.J. 495 (1997) (criticizing the cognitivist focus of orthodox subjectivism).
93. See John Gardner, Offences and Defences: Selected Essays in the Criminal Law (2007), (reprinting the essays discussed above). Chapter 12 of the book is a "Reply to Critics," which includes comments on this article.