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The previous three chapters outlined, in quite general terms, some of the central
characteristics of a theory of criminal responsibility. At least in the broadest terms,
it is a character theory of criminal responsibility. There are two distinct roles that
character plays in the theory. First, an agent is criminally responsible for his action
only insofar as that action reflects on him qua agent. And for that to be true, the
agents action must be appropriately related to the character of the agent. There
are two aspects to this requirement. One is that the agent must have the appropri-
ate status to be criminally responsible. That depends upon him having sustained
capacities in general concerning beliefs, evaluations and actions. The other is that
the action must be related to the agent in the appropriate way. This, I argued, does
not depend on the action being an instance of some persistent disposition of the
agent, as some character theories would have it. However, the idea of character
does play a central role in establishing that an agent is responsible for his action.
Capacity, I suggested, plays a lesser role in establishing that an agent is responsible
for his action. It is not a necessary condition of Ds responsibility for ving that he
could do otherwise than v. Choice, I argued, plays no central role in determining
whether an agent is responsible for his action. An agent need not have had a
choice, nor need he have had a perception of choice, about his action, nor need his
action to have been chosen for him properly to be held responsible for that action.
Secondly, character plays a role in determining whether the action is of the right
quality to deserve the stigma that is communicated by the imposition of criminal
responsibility. An agents character is at least in part constituted by his virtues and
vices. The absence of virtue is not sufficient for the proper imposition of criminal
responsibility. Nor is the presence of vice. It is a necessary condition of the imposi-
tion of criminal responsibility that the vice is of the appropriate kind. It must be of
the kind that displays that the agent was insufficiently motivated by the interests
of others. Furthermore, this vice must be manifest in an action of the agent. For
the imposition of criminal responsibility properly communicates something
about the action for which the agent is responsible as well as his character in
performing that action.
Of course, that is not to say that citizens are appropriately held responsible for all actions which
display the appropriate vice. There is still a relevant question about the moral limits of the criminal
law. See Chapter 3.
This account suggests that there are four elements to criminal responsibility.
Firstly, it must be established that the agent has the appropriate status. Secondly, it
is necessary to establish what action the agent has performed. Thirdly, it is neces-
sary to show that the action was appropriately related to the agent qua agent.
Fourthly, it must be shown that the action displays the kind of character that is
worthy of the stigma of criminal responsibility.
This chapter is concerned with the structure of criminal responsibility. The ele-
ments that I have outlined in the previous paragraph are indeed central to the
account of the principles of criminal responsibility that I develop in the second
part of this book. But they do not constitute the whole structure of criminal
responsibility. Criminal responsibility utilises some distinctions that map clearly
onto this fourfold structure. But there are other elements to the structure that are
morally salient and significantly complicate this picture. The distinction that has
the most significant impact is that between offence and defence. By distinguishing
between offence and defence, the criminal law introduces further complexity into
both the question of the attribution of responsibility and the question of the mani-
festation of character.
Offence definitions are typically constituted as actions which manifest a certain
character. For example, the definition of theft in the criminal law of Scotland, like
most jurisdictions, incorporates both the action of depriving another of their
property and the attitude with which it is done. It must be shown both that the
owner was deprived of his property (either permanently or temporarily) by D,
and that D deprived the owner of his property intentionally and dishonestly. It
appears, then, that the definition of theft introduces three of the elements of crim-
inal responsibility that I have outlined above. The accused must have performed
an action (depriving another of their property), he must have done it in a way that
reflects on him qua agent (intentionally) and he must have done it manifesting the
degree of culpability that makes the imposition of criminal responsibility appro-
priate (dishonestly).
However, this is only sufficient to show that the accused has committed the
offence of theft. It is still possible that he has a defence. Defences may operate to
complicate the picture with regard to attribution or to culpability. For example,
the defence of involuntary intoxication may be available to show that the action of
the accused did not really reflect on him qua agent. Or the defence of necessity
may be available to show that the action of the accused did not show him to have
the appropriate degree of culpability that would make the imposition of criminal
responsibility appropriate.
Now, it may be thought that we ought to simplify that structure. We ought, it
might be thought, to develop a structure of criminal responsibility that simply
reflects the fourfold test that I outlined above. That would require us to dismantle,
or at least fundamentally adjust, the distinction between offence and defence. For
example, it might be thought that we should push all attribution elements into
offence definitions and all culpability elements into defence definitions. One of
the purposes of this chapter, which I will undertake in Section 4.1, is to show why
this should not be done.
Following recent work in criminal law theory, I will argue that the distinction
between offence and defence is central to the project of the criminal law in com-
municating morally significant distinctions. One way in which this distinction
has been developed is along the following lines. Offences, it has been suggested,
are actions which there is prima facie reason not to perform. Defences operate
where, although there is prima facie reason not to perform the action, there is suf-
ficient reason all things considered.
I will defend an alternative suggestion. I suggest that we focus on the nature of
criminal conviction rather than on the practical reasoning of the defendant at the
moment of action. Offences, I argue, are best thought of as describing public
wrongs. We illuminate the distinction between offence and defence most clearly
by focusing on this aspect of criminal offences. Features which are morally rel-
evant to whether the defendant ought to be criminally responsible for his conduct
ought to be part of a criminal offence only if they constitute part of the general
nature of the public wrong. Defences constitute exceptions whereby the defendant
has perpetrated that wrong, but ought not to be held criminally responsible for it.
This provides some grounds for understanding why mens rea terms ought to be
included within offence definitions, something that is very unclear if we focus the
role of the distinction in practical reasoning.
Under this definition, we can say some things in general about offences. But
there is little suggestion that we can say much in general about defences, other
than that they operate where the defendant has perpetrated the offence, but is not
criminally responsible for it. Progress in understanding defences, I suggest, is
more likely to be made by focusing not on the nature of defences, but rather on
their categorisation.
Recently, it has been common to recognise three different kinds of defence:
exemptions, justifications and excuses. Broadly, a defendant is entitled to an
exemption if he is not an appropriate agent to be held criminally responsible.
A defendant is entitled to a justification if he has acted rightly, or at least permissibly.
An agent is entitled to an excuse if, despite all of the other elements of criminal
responsibility being fulfilled, it is inappropriate, for one of a number of reasons, to
hold him criminally responsible for his action.
In Section 4.2 I will consider what general principles we ought to adopt when
considering how to categorise different defences. Firstly, I will consider why it is
I first suggested that this is all that one can say in general about excuses in The Characters of
Excuse (2001) 21, OJLS 495.
The Structure of Criminal Responsibility 103
The criminal law recognises a basic distinction between offence and defence.
Defences can be separated into at least two kinds. Firstly, there are evidential
defences and secondly, substantive defences. Evidential defences are normally
utilised to show that the defendant did not fulfil the offence conditions. For example,
the defence of alibi is used where the defendant did not commit the actus reus of
the offence at all. Evidential defences are merely formalised elements of the law of
evidence concerning offence conditions. This chapter is concerned with substan-
tive defences, and their relationship to offences. Substantive defences are used
104 Part I: The Character of Criminal Responsibility
where the defendant rebuts a charge that he has committed a criminal offence by
denying, in some way or other, that criminal responsibility ought to be attributed
to him for his conduct.
Many authors now accept that there is a principled distinction to be drawn
between offence and defence. However, as we shall see below, quite recently some
distinguished authors thought that the distinction has no moral significance and
that it ought not to have practical consequences. Suppose that there are some ele-
ments which are relevant to determining whether a defendant ought to be held
criminally responsible for his conduct. The claim proposed by some is that there is
no moral principle or principles that might determine whether an element ought
to be constitutive of an offence definition, or rather a defence definition.
At least two sets of practical consequences may still flow from the decision to
categorise an element as part of a defence definition rather than an offence defini-
tion. The first set is evidential. Defendants may have an evidential role to play in
relation to defences that they need not play with regard to elements of offences.
For example, where a defence is at issue, the defendant may have to raise at least
some evidence that he is entitled to the defence if the issue is to play a role in the
decision taken. This is sometimes called the evidential burden of proof. That is
not true of offence elements. If the defendant says or does nothing, the prosecu-
tion must generally establish that the defendant has fulfilled the offence condi-
tions. Secondly, the defendant may have to give notice that he will use a defence
before the trial. No notice need be given be the defendant if he intends to show
that he has not fulfilled an offence element.
These practical considerations cannot be seen as anything but arbitrary, how-
ever, unless they follow some more general principles which show the moral
significance of the distinction between offence and defence. Practices such as
those regarding the laws of evidence and those regarding notice ought to follow
significant moral distinctions. Moral distinctions, on the other hand, cannot be
built upon these practical questions. If such practices are to be justified, they must
That being said, the judiciary do not always appreciate the significance of the distinction. For a
recent glaring failure, see the decision of Lord Rodger in Drury v HMA 2001 SCCR 583 and appro-
priate criticism in J Chalmers Collapsing the Structure of Criminal Law 2001 Scots Law Times
(News) 241.
For further discussion of evidential burdens of proof and the presumption of innocence, see
V Tadros and S Tierney The Presumption of Innocence and the Human Rights Act (2004) 67,
Modern Law Review 402. It is sometimes thought that even placing a burden on the defence to prove
that he falls within a defence on the balance of probabilities might be consistent with proper protec-
tion of the presumption of innocence. See the recent decision of Sheldrake v DPP [2004] UKHL 43.
In our article, Stephen Tierney and I outline our objection to this in relation to all but the most regu-
latory offences.
The history of the evidential basis of the distinction between offence and defence, and its
decline, are discussed in G Fletcher Rethinking Criminal Law (Oxford: OUP, 2000) ch. 7. Fletchers
view of the distinction is also developed in The Nature of Justification in S Shute, J Gardner and
J Horder Action and Value in Criminal Law (Oxford: OUP, 1993). A host of practical considerations
are analysed in some detail in P Robinson Criminal Law Defenses: A Systematic Analysis (1982) 82,
Columbia Law Review 199.
The Structure of Criminal Responsibility 105
However, the mere fact that defences exist immediately suggests something to
us about the nature of offences. It suggests that offences, at least as they are defined
in law, do not contain all of the necessary conditions for a defendant to be crim-
inally responsible for his actions. The defendant may have acted in such a way that
all of the definitional elements of a criminal offence are fulfilled. And yet he may
not be criminally responsible for his action. Why might this be the case?
A common way in which this question has been addressed has been in relation
to the role that the criminal law plays in guiding the practical reasoning of citizens,
particularly in morally difficult circumstances. On this account, offence defini-
tions ought to describe those actions that there is good prima facie reason against
performing. Offences put citizens on notice that they are doing something that
there is good reason not to do. The existence of defences is important, for they
show that there are some occasions in which it is inappropriate to hold the defendant
criminally responsible for an action of the kind that there is good prima facie
reason against performing. And this is so when the reasons generated by the
offence definition are balanced or outweighed by the reasons for performing the
action in the particular circumstances in which the defendant found himself.
Hence, the phrase prima facie reason is used in this context, in the words of
Kenneth Campbell, to refer to a reason which is not necessarily a conclusive one.
Within its defined scope the reason always applies, but it may be outweighed, or at
least balanced, by opposing reasons. It does not refer to something that merely
appears to be a reason, but turns out, on further investigation, not to be. It refers to
something that really is a reason, a reason that retains some normative force even if
it is capable of being outweighed or balanced.
This theory also has something to say about defences. Defence definitions refer
to the conditions under which the law recognises that the prima facie reasons not
to act have been outweighed or at least balanced in such a way that makes the
action acceptable. Offence definitions refer to things that there is good reason not
to do. Defence definitions refer to the circumstances under which those reasons
are outweighed or balanced by further reasons.
This theory can certainly explain some of the central features of the distinction
between offence and defence. Let us return to the extreme redefinition of rape that
I suggested above. There is certainly at least prima facie reason not to have inter-
course with a woman without her consent. But there is no prima facie reason
against having intercourse. When one has consensual intercourse, it is not as
though the prima facie reason against having intercourse has been balanced or out-
weighed by the fact that it was consensual. There is no such prima facie reason at
all. Hence, the theory can at least explain why it is absurd to define the offence of
rape as having sexual intercourse, pushing the issue of consent into the realm of
defences.
Offence and Defence in I Dennis (ed.) Criminal Law and Justice (London: Sweet and Maxwell,
1987) 79. See also J Gardner Justifications and Reasons in A P Simester and A T H Smith Harm and
Culpability (Oxford: OUP, 1996).
The Structure of Criminal Responsibility 107
Gardner, in Justifications and Reasons, argues that it only provides an explanation of justification
defences. Offence and Defence 84.
108 Part I: The Character of Criminal Responsibility
But mens rea terms do not commonly guide the accused in the way that actus reus
definitions do. Consider the offence of rape. Sufficient guidance is provided to
citizens by the norm that one must not have intercourse without consent. The
mens rea of rape does not provide extra guidance about how to behave. It is not as
though there is good reason not to have intercourse without consent, and some
further reason not to do so either intentionally or recklessly. Mens rea terms pro-
vide the conditions under which intercourse without consent is sufficiently
wrongful to warrant a criminal conviction. Their primary role is not to provide
guidance to citizens as to how they ought to behave.
Consequently if the proper theory guiding the definition of offences was that
offences are properly defined as actions that there is prima facie reason not to per-
form, the offence of murder would simply be killing and the offence of rape would
be having intercourse without consent. For there is at least a good prima facie
reason not to kill. And there is at least a good prima facie reason not to have inter-
course without consent. Where the defendant has killed or had intercourse with-
out consent, there is something that requires explanation. Furthermore, if this is
the case, a prohibitive norm of some sort has been violated. For it is killing (rather
than intentional killing) and non-consensual intercourse (rather than non-consensual
intercourse with knowledge or recklessness) that are prohibited.
Considerations such as this incline some writers to think that there ought to be
separate rules of conduct, so that violation of the proper conduct can be articu-
lated by the criminal law even if that violation was blameless. This might be
achieved by pushing much of the current content of mens rea terms into the realm
of defences.
However, to follow this line of reasoning is to fail to recognise something that is
central to both the nature of criminal offences, and their role in the criminal justice
system. It is true that criminal offences ought to be designed in such a way that
they can guide citizens with regard to their conduct. However, that is only one
important role that criminal offences play. Criminal offences also play a role in
conviction. And, in playing that role, offences are best thought of as public
wrongs rather than as conduct guiding norms.
The distinction between offences and defences has consistently been under-
stood in terms of the way in which citizens should respond to prohibitions, and
exceptions to those prohibitions, in their practical reasoning. If there is a focus
on wrongs rather than norms, that tends to be of secondary interest. As we will see
in Chapter 10, the distinction between offence and defence does have significance
with regard to practical reasoning, but understanding the role of norms in guiding
the practical reasoning of citizens cannot provide a full account of the distinction
See P Robinson Structure and Function in Criminal Law (Oxford: OUP, 1997) ch. 7.
See R H S Tur Subjectivism and Objectivism: Towards Synthesis in S Shute, J Gardner and
J Horder Action and Value in Criminal Law (Oxford: OUP, 1993).
For example, this is true of G Fletcher Rethinking Criminal Law (Oxford: OUP, 1978) ch. 7,
K Campbell Offence and Defence and J Gardner Justifications and Reasons.
The Structure of Criminal Responsibility 109
between offence and defence. If we focus on the role of criminal offences at the
moment of conviction rather than the practical reasoning of the defendant at
the time of acting our understanding of offences is significantly altered.
When an individual is held criminally responsible for his conduct he is con-
victed of a particular offence. The absence of defences do not normally play a part
in the description of the conviction. Consider a defendant who is charged with
assault and raises the defence of coercion. His defence fails and he is convicted.
His conviction is for assault. That he was not coerced does not play a role in the
nature of his conviction. The offence definition ought to describe the defendants
conduct in the appropriate way. The nature of what he has been convicted of is
intentionally attacking another. It is only that description that captures the nature
of his wrongful conduct accurately. The absence of a defence is not part of the
proper description.
We can see from this another reason why, in the context of the law of rape, it
would be absurd to put the issue of consent into the realm of defences. In such cir-
cumstances, where the defendant was convicted of rape, it would be implied that
the nature of the conduct for which a conviction was warranted was having sexual
intercourse. The absence of consent would not be part of the offence of which he
was convicted.
The proposal, then, is that a better explanation of the nature of offences is as
follows: an offence definition ought to include within it the central features of the
conduct of which it is appropriate to convict the defendant. Defences describe the
conditions under which such conduct is not worthy of the attribution of criminal
responsibility. But they do not constitute essential features of conduct which
express why the defendants conduct is worthy of conviction where the defence is
unavailable.
I have already suggested in Chapter 3, following Antony Duff, that the broad
idea of public wrongfulness, wrongful behaviour which the public have an interest
in condemning, is central to criminal responsibility. Now that account can be
deepened a little further. The definition of a public wrong need not be such that
any action that fulfils that definition is worthy of the attribution of criminal
responsibility. However, what must be the case is that, where such conduct is wor-
thy of the attribution of criminal responsibility, the conduct is properly and fully
described by the definition of that public wrong. The absence of defences must
not be constituents of the definition of the wrong. This principle clearly rules out
consent as a defence to rape. Absence of consent is central to describing the con-
duct of which the defendant ought to be convicted.
Partial defences, such as provocation and diminished responsibility, might be thought anom-
alous. In Scotland and in England and Wales at least, the primary context in which those defences
operate is where the defendant is charged with murder. Where those defences are successful the
defendant is convicted of a lesser homicide offence: culpable homicide in the former and manslaughter
in the latter. But it might be thought that the defence plays a role in the description of the offence. That
may be partly a consequence of the rather amorphous definition of those lesser homicide offences.
110 Part I: The Character of Criminal Responsibility
Much more needs to be said about the nature of criminal wrongs than I have
room for here, or than is available in the literature. Whilst some progress has been
made in recent writing on criminal law theory about the nature of criminal
wrongs, that work is far from fully developed. Here I will merely defend this
articulation of the distinction between offence and defence against some obvious
objections and consider the role that mens rea terms might play in describing
public wrongs.
It may be doubted that this distinction between elements that are constitutive
of the proper description of the wrong and elements which, in their absence, are
not morally significant to that description is either plausible on the one hand or
stable on the other. Consider Wyatt, who intentionally attacks another. He is
charged with assault, and he claims that he was coerced. That defence is rejected as
unsupported by the evidence. Why should it be the case that Wyatts intention is
constitutive of the wrong, where the absence of the defence of coercion is not?
Surely a morally significant aspect of the case is that Wyatt was not coerced.
Of course it is true, in one sense, that the defence of coercion was not available
to the defendant is morally significant. If he was coerced, a criminal conviction
would not have been warranted. His action would have been either justified or at
least excused. However, that fact in itself does not show that the absence of the
defence is an important part of the conduct for which Wyatt is appropriately con-
victed, worthy of description in the context of criminal offences. That Wyatt did
not have an alibi is morally significant in this sense, as is the fact that Wyatt is not
a dog. But surely these facts are not appropriate features of a full moral description
of his conduct. We can immediately see that including all features that are morally
significant would lead to the collapse of the idea that there are morally appropriate
descriptions of the defendants conduct altogether.
Of course, that does not yet show that absence of coercion fails to be part of the
proper description of the offence. That the defendant did not have an alibi and
that he was not a dog may be distinguished from that the defendant was not
defending himself in kind. Alibi is a question of evidence, and the fact that the
defendant is not a dog is a precondition of criminal responsibility. But this at least
shows that there is more to determining the proper moral scope of a criminal
offence than moral salience.
Perhaps this suggests that the important distinction is that between positive fea-
tures of the world, features that positively describe the conduct of the defendant,
and morally significant absences. Morally significant absences are features of the
situation which are not present, but which, were they present, would have moral
significance. But that distinction cannot do much work on its own. Consider a
defendant who has intercourse without consent. Is the lack of consent an absence,
See, for some examples, J Gardner Rationality and the Rule of Law in Offences Against the
Person (1994) 53, CLJ 502, J Horder Rethinking Non-Fatal Offences Against the Person (1994)
OJLS 335, R A Duff Rule Violations and Wrongdoings and the essays in A Duff and S P Green
Defining Crimes (Oxford: OUP, 2005).
The Structure of Criminal Responsibility 111
It is not even clear that the intentional nature of the attack needs to be referred to directly. An
attack is, by its nature, intentional. I include reference to the intention of the agent simply for the sake
of clarity.
112 Part I: The Character of Criminal Responsibility
of what makes murder morally abhorrent. Rather, cases of self-defence are exceptional
cases where intentional killing is justified. Similarly, the absence of involuntary
intoxication is not central to what makes murder morally abhorrent. Rather, cases
of involuntary intoxication are exceptional cases where the wrong of intentional
killing is excused.
Reckless killing, on the other hand, is not to be distinguished from intentional
killing on the same basis. Killing intentionally is particularly morally significant.
It distinguishes the very worst killers from those who are not so morally bad. It
may be appropriate for the criminal law to mark out the distinction between
intentional killers and reckless killers: the attitude of intentional killers towards
the life of others is, in general, worse than those who kill recklessly. On the other
hand, those who kill accidentally cannot be seen as mere exceptions to the general
category of killers. For most, or at least a very significant proportion, of those who
kill do so accidentally. If the criminal law failed to incorporate mens rea terms into
the offences of murder and manslaughter, it would also fail properly to describe
the nature of the wrong which is committed when a defendant kills intentionally.
It would misleadingly do as though killing, in general, has the kind of moral
significance that the defendants killing has.
However, there are three reasons why the nature of wrongs cannot do all of the
work in defining criminal offences. The first is that the distinction between
wrongs is often too fine-grained to be reflected by the criminal law. Wrongs may
be importantly or trivially distinct from each other. It is at least sometimes rational
to include distinct wrongs under the umbrella of a single offence. That is not to
say that it is always a mistake to assess what is central to a particular wrong, or that
it can have no contribution to make to the discussion of how to distinguish
between offences. But we need to know something further about the significance
of the distinction between wrongs to help us to make appropriate distinctions
between offences. The significance of a wrong may be provided by the intrinsic
values that the wrongful conduct attacks, but it may also be provided by the social
and historical context of the conduct in question.
Secondly, and relatedly, even if the conduct of the defendant is appropriately
defined as wrongful rather than merely harmful, that is not to say that a criminal
offence is appropriately defined simply by referring to that wrong. There may be
further significant features of the defendants conduct, over and above the nature
of the wrong, that the definition of the criminal offence ought to reflect.
Personally, I have my doubts whether the distinction is sufficiently powerful in this context. The
mens rea of murder in Scotland is defined as intention to kill or displaying such wicked recklessness as
to imply a disposition depraved enough to be regardless of the consequences: Macdonald on the
Criminal Law of Scotland 5th edn. (Edinburgh: W Green, 1948). In general the Scots law tracks my
moral intuitions concerning the distinction between murder and culpable homicide (the Scots equi-
valent of manslaughter) much better than the English law. The distinction between intention and
recklessness is, I think, more powerful in the context of lesser offences. See Chapter 8 for discussion.
For some further investigation of that issue, see V Tadros The Distinctiveness of Domestic
Abuse in A Duff and S P Green Defining Crimes.
114 Part I: The Character of Criminal Responsibility
that fall within that definition ought to constitute the offence. There may be cases
where it is proper to prohibit a certain form of conduct under a particular descrip-
tion. But there are instances of that conduct that ought not to be considered crim-
inal wrongdoing given the context. That is not because the offensive conduct is
justified, but rather because in the context there is no offensive conduct at all. For
example, suppose that my martial arts instructor instructs me to try to assault
him. I follow the instruction. I have not committed the offence of attempted
assault, even though I have fulfilled all of the conditions of that offence properly
defined. I will discuss such cases in more detail in Chapter 10.
The distinction between offence and defence, then, is best understood in the light
of the role that criminal offences play in conviction. The definition of criminal
offences ought to reflect the features of the defendants conduct that make it wor-
thy of a criminal conviction. A central part of that description may be provided by
the nature of the wrong that the defendant has perpetrated. But there may be
other salient features of the defendants conduct that he ought to be convicted for.
For example, it may be that we can understand the idea of some wrongs independently
of the culpability of the defendant. But if that is so, that does not entail that the
culpability of the defendant ought to be a defence issue. Culpability is, neverthe-
less, central to the proper description of the conduct for which the defendant is to
be convicted.
This theory still leaves room for defences, however. Defences operate where the
presence of the circumstances that the defence describes is sufficient to make the
attribution of criminal responsibility for the defendants conduct inappropriate.
But in the absence of the defence, those circumstances do not play an important
part in the proper moral description of the defendants conduct.
Now, the theory of defences that is proposed by this account is negative.
Defences operate where offence conditions are fulfilled, but where it is inappro-
priate to hold the defendant criminally responsible. It might be thought fruitful to
search for a general theory of when this is the case.
In my view, however, there is little more that can be said about defences in gen-
eral. Progress in our understanding of defences is more likely to be made, I sug-
gest, on the categorisation of different defence claims, and distinct claims within
those categories, rather than the definition of defences in general. This thought is
clearly shared amongst theorists of the criminal law, who spill much ink discussing
how best to categorise defences. This is particularly true with regard to the distinc-
tion between justification and excuse, which, despite its relatively trivial practical
importance, has generated a large body of work.
However, despite the persistent focus on categorisation in criminal law theory,
there has been relatively little reflection on categorisation in general terms.
116 Part I: The Character of Criminal Responsibility
I first suggested the role for categorisation that I defend more clearly here in The Structure of
Defences in Scots Criminal Law (2003) 7, Edinburgh Law Review 60.
An exception is R A Duff Rule-Violations and Wrongdoings. Duff s argument suggests that at
least as far as duress is concerned, we ought to be categorising tokens rather than types.
The Structure of Criminal Responsibility 117
Although Jeremy Horder thinks that there might be cases in which provocation justifies. See
Provocation and Responsibility (Oxford: OUP, 1990) 1345 and 160.
It is defended as a justification defence by type in P Westen and J Mangiafico The Criminal
Defence of Duress: A Justification, Not an Excuse And Why It Matters (2004) 6, Buffalo Criminal
Law Review 833.
See, for example, R F Schopp Justification Defences and Just Convictions (Cambridge: CUP,
1998) 10.
118 Part I: The Character of Criminal Responsibility
sufficient reason to investigate whether there are other defence-types that generate
tokens that we ought to be inclined to categorise differently.
We might, then, disagree about what is permissible in these cases. But suppose
for the moment that it is permissible for Vlad to rob the local post-office, but not
for Rod to do so. The credible threat to Vlads daughter is sufficiently powerful to
warrant Vlads robbery. But the credible threat to Rods is insufficient. If Vlad acts
with a cool head, he is justified in robbing the post-office. But there are no
grounds for providing him with an excuse. If Rod acts with a cool head, he is not
justified in robbing the post-office. He does not appear to have a defence at all.
This might suggest that duress is a justification defence. But now suppose that,
rather than acting with a cool head, Rod and Vlad both rob the post-office in a
state of utter terror for the well-being of their respective daughters. Neither can
focus properly on the normative reasons that ought to guide them in the situation.
Each is desperate that their daughter is returned to them unharmed. They are so
overwhelmed that they do not properly consider the harm that will be suffered by
the post-office workers by being threatened with a gun, or the risk to their health.
Clearly, Vlad should have a defence, and we should at least be inclined to excuse
Rod. Whilst the latter has not acted in a permissible way, he has committed a
criminal offence where there was insufficient reason to do so, his extreme fear
ought to reduce our expectations of his capacity to evaluate his circumstances
correctly.
But surely if a defence is available in these cases that defence ought to be the
defence of duress. For in all of these cases, it is appropriate to say that the defendant
has been forced to rob the local post-office by another. The attempt to categorise
according to type supposes that we must decide which kind of explanation can
provide a defence in these cases. That will be very problematic. If the relevant
explanation must be that the defendant is overwhelmed by fear, the defence will
never be available where the defendant acts with a cool head. But we have seen
that there may be circumstances in which acting with a cool head is permissible in
cases of duress. If the explanation must be that the defendant has done what is per-
missible, on the other hand, then we fail to take seriously the extent to which the
defendants ability to evaluate what is permissible may be undermined by credible
and powerful threats. Surely either kind of explanation ought, independently, to
be available to the defendant, for each explanation provides a credible reason why
we should not hold the defendant criminally responsible for his conduct.
It is not, then, that duress is difficult to categorise qua type, but rather that we
should not be attempting to categorise qua type at all. There is good reason to
think that other defence-types will resist neat categorisation in this way as well.
Sometimes a defendant may not be criminally responsible because he is resisting
an attack using permitted force. Other defendants, on the other hand, may not be
criminally responsible because we cannot expect them to evaluate precisely how
much force is required to defend themselves. Some defendants may not be crim-
inally responsible because the provocation was sufficient to warrant a violent
The Structure of Criminal Responsibility 119
See, for example, P Robinson Structure and Function in Criminal Law ch. 5.
Conflicts of Justifications (1999) 18, Law and Philosophy 4168. On conflicts, see also
C O Finkelstein Two Men and a Plank (2001) 7, Legal Theory 279.
120 Part I: The Character of Criminal Responsibility
See J Gardner The Gist of Excuses (1998) 1, Buffalo Criminal Law Review 575 and my discussion
of that paper in The Characters of Excuse, which provides the basis for the discussion in Chapter 11.
The Structure of Criminal Responsibility 121
moral light, and in the light of the role that criminal justice institutions play. With
that in mind, let us take some preliminary steps towards distinguishing between
different defence categories. These steps are intended only to provide a general
sketch of the tripartite scheme. That scheme will only be fully convincing (if then)
in the light of the full account of each category defended in Part II of the book.
I suggested above that bipartite and tripartite schemes of defences are common in
the literature. The difference between the two is that tripartite schemes include an
extra category of defences called exemptions, which are distinguished from justifica-
tions and excuses. In this section I will defend a version of the tripartite scheme,
though my analysis of the category of exemptions will be somewhat different from
that commonly proposed by criminal law theorists. I will begin with the distinction
between justification and excuse before considering the distinction between
exemption and excuse. My aim is not fully to defend a particular version of those
distinctions, but rather to suggest why I think that the tripartite scheme is an
acceptable way to proceed in discussing particular defences later in the book. I will
provide at least some reason to think that the tripartite scheme, if carefully devel-
oped, tracks morally and institutionally significant distinctions that will help us to
understand just how to think about particular cases. Unfortunately, I will not be
able to achieve this without referring to some of the discussion about those cat-
egories that I will engage in later in the book, so much of what I say will be
defended only in a preliminary way at this stage.
This generates three theories of justification. Firstly, there is the deeds theory.
According to this theory, it is the objective facts that are central to justifications.
Hence, D is entitled to a justification defence in case 2 (although he may be con-
victed of a criminal attempt). However, he is only entitled to an excuse in case 1.
Secondly, there is the reasons theory. According to this theory, it is the (reason-
able) beliefs of the defendant that are significant. Hence, D is entitled to a justifica-
tion in case 1. However, he is not entitled to a defence in case 2. Thirdly, there is
the dual theory. According to this theory, both Ds beliefs and the appropriate
facts must be present for D to be justified. According to this theory, D is entitled
to an excuse in case 1. He is not entitled to a defence in case 2.
In Chapter 10 I will defend a version of the reasons theory. Here I will merely
sketch out a preliminary issue concerning categorisation. What principles can
help us to decide how many categories of defence to adopt? Why should we think
about the borderline between justification and excuse rather than categorise dis-
tinct cases in distinct ways?
We can see from the above discussion that there are different ways in which we
might categorise these two cases. What principles should we use to determine how
many categories of defence there are? For example, it might be thought that the
paradigm case of justification is case 3:
Case 3: D assaults a mugger to defend himself from an attack.
Case 3 would be provided with a justification defence according to all three theories.
It is the only case in which D would be provided with a justification defence by the
dual theory. In case 1, D is clearly entitled to a defence of some kind, though there is
disagreement about how to categorise this case. About case 2 there is disagreement
about whether D is entitled to a defence or not, but even if he is, it is commonly
agreed that he deserves a conviction for something, perhaps an attempt.
This might suggest that we are best to distinguish at least two categories.
Justification defences cover case 3. Case 1 is to be distinguished from case 3, and
so should be categorised differently. Perhaps such cases ought to be categorised as
excuses, or perhaps a different label ought to be used. If there are further kinds of
defences, involving unreasonable beliefs, they ought to be categorised separately
again. Developing this theory, it may be argued that there is no such thing as the
real definition of a justification. The important thing is to distinguish morally
distinct cases clearly. The label justification is sufficiently flexible that we can
reserve it for the paradigm case without loss. Alternatively, we might say that there
are two different kinds of justification: justification based on true belief and justifica-
tion based on reasonable belief.
Case 2, on the other hand, is more problematic. For there is a question, regard-
ing this case, about whether D has a defence to assault at all. Intuitions about
whether D should be convicted in case 2 diverge. Some authors, notably Paul
Robinson, think that a criminal conviction for assault is warranted only if there is,
objectively speaking, some loss of utility all things considered. Others think that
there should be a conviction. In Chapter 10 I will show that Robinson is mistaken
and that a conviction in such a case is warranted.
This leaves us with the question of how we should categorise case 2. Should we
call it a justification, an excuse, or should it be thought sui generis? I suggest that
we should not expand the number of categories beyond justifications and excuses.
The important question, in my view, is whether the resulting harm should be a
significant factor in determining whether D was justified in his conduct. The very
idea of justification, in my view, is focused not on the consequences of the action,
but rather on the reasons that D had for acting. In Chapter 10 I will show why we
should adopt the reasons theory of justification rather than the dual theory.
That is not to say, of course, that there is no difference in the appropriate
description and moral reaction to cases 1 and 3. Clearly in case 1 D owes an apo-
logy to the jogger. Although he had no reason to think that he was not being
attacked by a mugger, he has mistakenly harmed the jogger. And as I noted above,
even pure accidents can generate the demand for an apology. Obviously no apo-
logy is required in case 3. The mugger gets what is coming to him.
But whilst there is a significant moral distinction to be drawn between the two
cases, my suggestion is that that distinction is not as significant as the distinction
between the reasonable and the unreasonable, between those who act in accordance
with reason all things considered and those who do not. The excused are those
who cannot claim to act in a way that there was sufficient reason to act in. This is
so even though, for one of a number of reasons, their action cannot appropriately
attract criminal responsibility. The justified are those who act where there is suffi-
cient reason to act as they do.
It remains to be seen what in accordance with reason means in this context.
Does it mean in a way that has good consequences or rather in accordance with
right reason? In Chapter 10 I will show both how these different claims some-
times come apart, and that it is the latter that is of the greater significance in the
context of justification. For now, though, I hope to have at least made plausible
the idea that we do well to simplify the borderline between justification and
excuse by distinguishing those who have behaved appropriately in the light of nor-
mative reasons from those who have not. Perhaps the criminal law should mark
the difference between cases 1 and 3. Case 3 is certainly paradigmatically justifica-
tory, whereas case 1 is not, for in the paradigm case of justification things are just
as they seemed to D. But the idea of justification focuses primarily on the kind of
124 Part I: The Character of Criminal Responsibility
explanation that the defendant can give for his actions: the defendant must show
that there was good reason for him to do as he did. And where things are not as
they seemed, the defendant can still give the relevant kind of explanation of why
he did what he did. So even if there is some further important distinction to be
made between different kinds of justification, the category of justification is broad
enough to encompass paradigmatic and non-paradigmatic cases.
See also R Jay Wallace Responsibility and the Moral Sentiments (Cambridge, Mass.: Harvard
University Press, 1996).
Duff s account of preconditions is developed in Principle and Contradiction in the Criminal
Law: Motives and Criminal Liability in Philosophy and the Criminal Law: Principle and Critique
(Cambridge: CUP, 1998), Law, Language and Community: Some Preconditions of Criminal
Liability (1998) 18, OJLS 189 and I Might be Guilty, But You Cant Try Me: Estoppel and Other
Bars to Trial (2004) 1, Ohio State Journal of Criminal Law 1.
The Structure of Criminal Responsibility 125
Those who argue for the distinction between exemptions and excuses to be
drawn in this way also tend to think that conditions that ground exemptions are
not relevant in determining whether the agent is entitled to an excuse. Consider
mental disorder. Either the defendants mental disorder is sufficiently severe to
ground an exemption, it is argued, or it is not relevant to determining the respons-
ibility of the defendants criminal responsibility at all. If the agent crosses the
threshold in terms of the capacity to be regarded as status-responsible, the argu-
ment goes, he must be judged by the standards that apply to everyone else in the
context of excuses.
This, it is sometimes claimed, has implications for the thorny question of
whether or how we should adjust the standards of reasonableness that are com-
monly at issue in some defences. For example, for the defence of coercion to be
available it is normally the case that the defendant must have shown a reasonable
degree of fortitude in resisting the threat applied to him. But are we to adopt a
purely objective standard of reasonableness here, or should we adjust that standard
to reflect, for example, the age of the defendant or the fact that she had a mental
disorder? The distinction between exemptions and excuses is sometimes used to
defend the idea that we should not adjust standards in that way, or that we should
restrict the circumstances in which such standards are adjusted. If the agents
youth or disorder is to play a role in denying his criminal responsibility, the
argument is, they must operate in the context of exemptions.
Horders analysis of the distinction between excuses and exemptions invites us
to consider some unclear cases with regard to the distinction. Is the defendant
who is involuntarily intoxicated and assaults another entitled to an excuse or an
exemption? According to Horder, the insane are entitled to an exemption because
the rules of the criminal law are not addressed to them in particular circumstances.
We might say that this is also true of the involuntarily intoxicated. We might say
that the rules of the criminal law are not addressed to the involuntarily intoxicated
whilst they are intoxicated.
But that seems the wrong way to see the case of involuntary intoxication. Surely
in such a case we think that the law is addressed to the defendant, but that he could
not be expected to conform to the requirements of that law whilst involuntarily
intoxicated. Should we see it differently with regard to the insane? Even here, it
seems problematic to suggest that the criminal law is not addressed to the insane, as
though those with mental disorder should not even try to make their conduct con-
form to the requirements of the law. It may be that Horder is merely referring to
The most explicit and careful consideration of this issue is by Jeremy Horder in Between
Provocation and Diminished Responsibility (1999) Kings College LJ 143. For a broadly similar
view see A Ashworth The Doctrine of Provocation (1976) 35, CLJ 292, J Gardner The Gist of
Excuses (1998) 1, Buffalo Criminal Law Review 575, J Gardner and T Macklem Provocation and
Pluralism (2001) 64, MLR 815 and J Gardner and T Macklem Compassion without Respect? Nine
Fallacies in R v Smith [2001] Crim LR 623.
Though Horder has argued that age might play a role in adjusting the relevant standards.
See D Husak Philosophy of Criminal Law (New Jersey: Rowman and Littlefield, 1987) 197.
The Structure of Criminal Responsibility 127
the state of the law here. The law, Horder might claim, entitles the accused to an
exemption only in particular circumstances. In the law of England and Wales, for
example, the defendant is entitled to use the insanity defence only if, through his
disease of the mind, he did not know either the nature and quality of the act, or that
his act was (legally) wrong. But the law does not categorise defences into exemp-
tions and excuses. If the law restricts the use of the defence in this way, it may be that
the insanity defence, as defined in the law of England and Wales, is an excuse.
I think that this is precisely what is wrong with the insanity defence as it is con-
structed in England and Wales. As I will show in Chapters 5 and 12, we ought not
to think that we have to choose how to categorise mental disorders in general.
Mental disorders might ground either exemptions or excuses depending on the
particular defendant, and the conditions under which he acted. It is relatively
common to argue that, because there are cases of mental disorder which ought to
ground a defence, but which do not undermine the status of the accused in total,
mental disorder defences ought to be categorised as excuses rather than exemp-
tions. But there seems little reason why we should conclude from the fact that
mental disorder can excuse some defendants from criminal responsibility that it
cannot exempt others. Currently, only a flawed version of an excuse is available in
the law of England and Wales. The point here, though, is that our analysis of
exemptions and excuses ought to be led by principle rather than the law.
So what is the proper principle to be adopted here? The first thing to note is that
there is a distinction to be drawn between a defence which exempts the defendant
from responsibility for his conduct and a defence which merely shows that the
defendant was not responsible for his conduct. A defendant is responsible for an
action, I have suggested, insofar as that action reflects on the agent qua agent.
Exemptions, I suggest, are available insofar as the agent is not the appropriate kind
of agent to be held responsible for his actions. That is to be distinguished from
cases in which the agent is the appropriate kind of agent to be held responsible for
his actions, but is not to be held responsible for this action in particular.
Now, it may be suggested that there are defendants who ought not to be held
responsible for a particular kind or class of actions, but who are responsible for
their actions in general. And it might be this possibility that Horder refers to in the
passage quoted above. These agents, it might be argued, are exempt from respons-
ibility for that kind or class of action, but not for their actions in general.
Gardners account of basic responsibility also includes such agents, as well as
agents who do not have the appropriate status in general. He writes:
I dont mean that the determinants of basic responsibility are status conditions, such that
they necessarily eliminate ones responsibility for everything one does over a certain period.
4.4 Conclusions
In the first part of this book I have outlined a number of the central issues that
ought to guide us in determining the principles of criminal responsibility. I have
suggested that it is appropriate for the criminal justice system to focus on actions.
The class of actions that the criminal justice system ought to focus on are public
wrongs. If the defendant has perpetrated a public wrong, that is not to say that the
defendant is rightly held criminally responsible for it. It may be that the defendant
is exempt from responsibility in general. It may be that the agent is justified. Or it
130 Part I: The Character of Criminal Responsibility
may be that the defendant is excused. In such cases, the defendant can show either
that he is not a responsible agent, or that he is not responsible for the particular
action that he has performed, or that he has not displayed the kind of moral char-
acter that is deserving of the stigma implied by the attribution of criminal respons-
ibility to him.
It is worth, at this stage, saying a little more about the structure of Part II of this
book. I will begin in Chapter 5 with a discussion of exemptions. It might be
thought odd to discuss what are commonly thought of as defences at the begin-
ning of the principles of criminal responsibility. However, as I suggested above,
exemptions are not best seen as defences. The agent who offers an exemption does
not claim that she has an explanation for the wrong that she has perpetrated in
particular. She suggests that she is not an appropriate agent for whom investiga-
tion into her criminal responsibility is appropriate at all. Hence, although it may
be argued that exemptions are at the bottom of the list of priority for the defendant,
who would rather be justified or excused, on conceptual grounds an investigation
into whether an agent is exempt ought to come first. For status-responsibility, to
which exemptions attach, is a precondition of the relevance of the investigation
into the other elements of criminal responsibility.
In Chapters 6 and 7 I will focus on two elements of the attribution of respons-
ibility. Those are causation and criminal omissions. These two doctrines are central
to the question of the kind of action that has been performed, and hence help to
constitute the nature of the wrong under investigation. In Chapters 8 and 9 I will
focus on two further issues that are central to refining our understanding of public
wrongs. The first is intention. Intentional wrongs are often considered to be the
central case of a public wrong. I will investigate the nature of intentions, and con-
sider their role in defining criminal offences. The second is recklessness. Here the
central question is how much the defendant needed to know about the risks to be
criminally responsible for performing the actus reus of a criminal offence.
The remaining chapters are concerned with different kinds of defence claim.
Following the commonly recognised priority of justification over excuse, I will
begin in Chapter 10 with an outline of the nature and scope of justification
defences. I will defend the reasons view of justification defences outlined above.
Chapter 11 will develop a general account of excuses. Chapter 12 will investigate
the thorny issue of whether the standards imposed in excuse defences ought to be
tailored to fit particular characteristics of the accused. Finally, Chapter 13 will
consider the extent to which mental disorder defences might operate in the con-
text of excuses.