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4

The Structure of Criminal Responsibility

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.

Criminal Responsibility. Victor Tadros.


Oxford University Press 2005. Published 2005 by Oxford University Press.
The Structure of Criminal Responsibility 101

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

Carmichael v Black 1992 SLT 897. Milne v Tudhope 1981 JC 53.


Authority is a bit scant, but see Mackenzie v McLean 1981 SLT (Sh.Ct) 40 and Kane v Friel 1997
SLT 1274.
102 Part I: The Character of Criminal Responsibility

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

necessary to categorise at all. I will suggest that categorisation aims at drawing


morally significant distinctions between defendants who ought not to be held
criminally responsible, but who have fulfilled elements of a criminal offence.
Secondly, I will address the question of how many different categories we ought to
adopt. I will suggest that the threefold distinction between defences is acceptable
in general even though different kinds of claim may be available within each cat-
egory. There are moral distinctions to be drawn between different kinds of exemp-
tion, different kinds of justification and different kinds of excuse. But that is not
to say that categorisation is irrational. In categorising, we ought to draw the most
morally significant lines between classes of defence.
In Section 4.3 I will defend the tripartite categorisation of defences. I will do
this by considering two distinctions. The first is the distinction between justifica-
tion and excuse. I will argue that the role of that distinction is to separate out
defendants who have acted where there was sufficient reason to do what they did
and defendants who have acted without sufficient reason. I will show that we
ought not to allow practical consequences of the distinction to determine the
quality of the distinction. Rather, we should evaluate the practical consequences
of the distinction only once we have discovered the most morally significant line
to be drawn between justification and excuse.
The second is the distinction between exemption and excuse. Whilst the dis-
tinction is sometimes recognised, there has been relatively little discussion of its
moral significance. This has led some to include elements within exemptions that
are better placed within excuses. The central moral distinction between exemp-
tion and excuse, I will argue, has become blurred in the literature, distorting the
category of exemptions. Excuses, on the other hand, I will argue, are not naturally
ordered. There is relatively little that one can say about excuses at a general level.
This will pre-empt a full defence of that claim in Chapter 11. As it is obvious that
exemptions and justifications are distinct from each other, that suggests that a tri-
partite distinction is at least a plausible way to categorise defences, a distinction
that should help us to illuminate the relevant moral issues which should guide
criminal justice.

4.1 Offences and Defences

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

be justified on the basis of the moral significance of the distinction between


offence and defence.
As I noted earlier, it has been denied that the distinction between offence and
defence has moral significance, although this stance is becoming increasingly
unpopular. The position that there is no principled distinction between offence
and defence is defended most vigorously by Glanville Williams, who claimed that:
What we think of as the definition of an offence and what we call a defence can only be
regarded as depending largely upon the accidents of language, the convenience of legal
drafting, or the unreasoning force of tradition.
Now, even if one accepts that there is no principled distinction between offence
and defence, there may be good reason for the distinction to be recognised for
practical reasons. For example, categorising defences separately might ease the
burdens of drafters, who would otherwise be required to build all of the aspects of
general defences into offence definitions. And that would substantially increase
the length of criminal codes.
However, there is at least good reason to investigate whether something morally
substantial lies behind the distinction between offence and defence. We ought to
be put on notice by the fact that some extreme ways of drawing the distinction are
obviously morally absurd. For example, suppose the offence of rape were defined
as having sexual intercourse, and it was a defence to show either that the victim
consented, or that the defendant (reasonably?) believed that she consented. This
might not make any practical difference with regard to who would be liable for
conviction and who would not. But it nevertheless seems woefully inappropriate
to define the offence of rape merely as having sexual intercourse. If nothing else,
we can see from this example that the distinction between offence and defence
appears to play an important communicative function.
Where should we begin when analysing the distinction between offence and
defence? Should we begin by trying to understand something about defences or
rather by considering offences? Perhaps we can develop a general account of
defences. And if that were the case, we might make progress in understanding
offence definitions in contrast to the definition of defences. My suspicion is that we
do better by beginning to search for a general theory of what should constitute a
criminal offence. Substantive defences operate when it is inappropriate to impose
criminal responsibility on the defendant even though he has fulfilled the conditions
of the offence. And there may be a variety of reasons why criminal responsibility
ought not to be imposed even if the conditions of an offence have been fulfilled.
Given this, it is likely to be more promising to try to make progress on the distinc-
tion between offences and defences by focusing primarily on the nature of offences.

Offences and Defences (1982) 2, Legal Studies 233, 256.


This is, in fact, proposed by Fletcher in Rethinking Criminal Law 7057. For criticism, see R A Duff
Rule Violations and Wrongdoings in S Shute and A P Simester Criminal Law Theory: Doctrines of the
General Part (Oxford: OUP, 2002), although see below for a discussion of Duffs account.
106 Part I: The Character of Criminal Responsibility

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

Nevertheless, whilst this theory makes some progress in understanding the


distinction between offence and defence, there are at least two features of the
theory that reduce its explanatory power. Firstly, the distinction appears only to
be able to explain the distinction between offences and justification defences. It is
plausible that the defendant is entitled to a justification defence insofar as he can
show that he acted for good reason, even though there was prima facie reason not
to act as he did. But it is more difficult, on this theory, to explain excuses. Where
the defendant is entitled to an excuse, the law recognises that the imposition of
criminal responsibility is inappropriate, but not because the defendant had suffi-
cient reason to balance the reason against performing the action. Excuses are avail-
able despite the fact that the defendant did not have sufficient reason to act in the
way that he did. The distinction between what there is prima facie reason not to do
and what there is reason not to do all things considered, then, can provide only a
partial explanation of the distinction between offences and defences.
However, given what I suggested earlier, that may be conceded by defenders of
the theory. It might be argued that the theory provides an explanation of the
nature of offences, without providing a complete explanation of the nature of
defences. As I have suggested that there is good reason to suppose that no gen-
eral definition of defences is likely to be forthcoming, so significant progress con-
cerning the distinction between offence and defence may have been made.
But there are further problems with the theory regarding the nature of offences.
Whilst the theory can explain extreme examples as noted above, it has more
difficulty when it comes to explaining other elements that are commonly features
of offences, and seem properly to be features of offences. Consider the role of
mens rea terms in the definition of offences. It is not only common to include mens
rea terms as part of the definition of the offence, to most criminal lawyers it is
intuitively correct to do so. Of course, the question of whether mens rea consider-
ations ought to be pushed into the realm of defences is still open. But we should at
least attempt to find some explanation of the common intuition that mens rea
terms are properly part of offence definitions.
Indeed, Campbell attempts to justify the role of mens rea terms in offence defini-
tions, at least for societies such as ours. And he attempts to do this on the basis of
the role that offences play in guiding the practical reasoning of citizens. This is to
be distinguished from cultures that do not attempt to guide conduct through pro-
hibitions. He writes in the context of rape:
Criminal law systems in other cultures can no doubt take as part of the offence elements any
outcome of human action which is to be regretted, while allocating mental or negligence
elements to the defence side. On this view every instance of (perhaps extra-marital) non-
consensual intercourse is a violation of the prohibitive norm. A system of this type does not
take as its main aim the guidance of conduct but the institutionalised expression of concern
at an unfortunate occurrence. Conduct guidance follows only derivatively from this.

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

or is it present? It appears to be a morally significant absence. But, as I have suggested


above, surely the absence of consent is properly constitutive of the offence of rape.
What constitutes the features of an offence must be defended on moral, not on
purely factual grounds.
Rather, I suggest that we should establish the nature of offences according to
morally significant features that fully describe, in a moral sense, the conduct
which is worthy of conviction. Wyatts conduct is fully described as an intentional
attack. Nothing further needs to be said properly to capture what is wrong about
what he has done. It is true that if the defendant was coerced (or if he was insane,
or involuntarily intoxicated . . .) he would not be worthy of the attribution of
criminal responsibility. But in the absence of those conditions, his wrongful con-
duct is properly described as an intentional attack. When another intentionally
attacks me, I condemn his conduct simply by referring to that intentional attack.
It is simply false that what I am really saying is that he intentionally attacked me
and he was not defending himself or involuntarily intoxicated, or insane, or
coerced . . .
To see this, compare achievements. Suppose that an athlete runs the 100 metres
in under 10 seconds. We properly congratulate him for having run so fast. We do
not congratulate him for having run so fast in the absence of performance enhancing
drugs, and without a powerful wind behind him, and without divine interven-
tion . . . If we were to add these conditions, we would imply that the normal state
of affairs would be that athletes run with the aid of performance enhancing drugs,
with a powerful wind behind them or with divine intervention. If those things did
commonly assist athletes, it would be appropriate to congratulate the athlete for
having run without such assistance. But where such assistance is uncommon,
adding the extra conditions is quite odd. The general category of successful run-
ning is simply fast running.
From this we can see the moral significance of the distinction between features
which are constitutive of the moral nature of conduct, be that wrongful or suc-
cessful conduct, and features whose absence is not constitutive of the moral nature
of conduct, but whose presence would be morally significant. An offence is prop-
erly defined if its elements are morally significant either if they are present or
absent. Criminal offences, then, are properly constituted of elements which define
the class of conduct that is worthy of condemnation in general. Where the
defendant is entitled to a defence, he is entitled to claim that although his conduct
falls within that class, it is exceptional. It is the kind of conduct that, although it
falls within the class of conduct that is worthy of condemnation in general, in
this particular instance it is not an appropriate target for the attribution of
criminal responsibility. In the absence of such exceptional circumstances the

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

description of the class is a full description of the conduct: it is a description that


properly accounts for why the conduct is worthy of condemnation.
Now we can begin to see why it is at least often appropriate to include mens rea
terms within the definition of offences. As I noted earlier, the primary role for
mens rea terms is not to provide guidance to citizens with regard to how to act.
There may be offences where mens rea terms do provide such a role, but that is not
their central function. Normally, sufficient guidance with regard to how to act is
provided simply by the actus reus alone.
However, if we focus on the role of offence definitions at the moment of con-
viction rather than the moment of action, a rationale for including mens rea terms
in the definition of offences becomes much more obvious. The distinction
between offence and defence, then, is to be made by reflecting on what we wish to
convict the defendant of. One way in which we might do this is by focusing on the
nature of the wrong that has been perpetrated. I think that focusing on the wrong
perpetrated can provide at least part of the relevant answer, although I also think
that it alone may ultimately be inconclusive. Firstly, let us see why focusing on
wrongs rather than norms of conduct might provide some assistance in fixing the
nature of offences.
It has been widely noted in the literature that mens rea terms are central to prop-
erly describing the nature of criminal wrongs. They are central to distinguishing
mere harms from wrongs. When the defendant causes the death of another, he per-
forms a harm which is rightly to be regretted. Consequently, in guiding his conduct,
the defendant ought to be motivated not to cause death. Hence, in terms of guiding
conduct, it is sufficient to say to citizens, in biblical fashion, that they must not kill.
However, that one has killed does not yet mark out the conduct of the defendant as
worthy of public indignation, or in this case perhaps condemnation.
Suppose, for example, that we defined the offence of murder simply as killing,
providing a defence to those who do not kill (or cause grievous bodily harm)
intentionally. A defendant fails to use those defences, he intentionally killed, and
he is convicted of murder. This would suggest that the appropriate full description
of the conduct which he is convicted of is merely killing. But surely a crucial
aspect of the defendants conduct, of what makes it morally significant, is missing
in this description. That he intentionally killed is surely central to properly describ-
ing his conduct morally. Non-intentional killings are not a mere exception to
the wrongful conduct of killing. Rather, different kinds of killing are differentiated
in a moral sense according to the way in which they are done.
That the killing was not done in self-defence is not plausibly central to the
description in this way. The absence of self-defence is not central to a full account
See, for some examples, R A Duff Intention, Agency and Criminal Liability (Oxford: Blackwell,
1990); J Gardner and H Jung Making Sense of Mens Rea: Antony Duff s Account (1991) 11, OJLS
559; J Gardner On the General Part of the Criminal Law in A Duff (ed.) Philosophy and the
Criminal Law: Principle and Critique (Cambridge: CUP, 1998); J Gardner and S Shute The
Wrongness of Rape in J Horder (ed.) Oxford Essays in Jurisprudence: 4th Series (Oxford: OUP, 2000);
and R A Duff Rule-Violations and Wrongdoings.
The Structure of Criminal Responsibility 113

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

If we focus on what it is that we wish the defendant to be convicted of, however,


some further progress can be made. Consider whether mistake about consent in
the law of rape ought to be part of the offence definition, or should be in the realm
of defences. Antony Duff has suggested that where the defendant has intercourse
with the victim without consent, he has committed the wrong of rape, regardless
of his beliefs:
Whatever the agents beliefs, the victim was subjected to non-consensual sexual inter-
course; which is to say that she suffered, at his hands, the wrong of being raped. Intrinsic to
that wrong is at least the mans intention to have sexual intercourse with her: but it does not
necessarily involve his intent as to her lack of consent.
As I suggested above, my suspicion is that there are no very bright lines to be
drawn around the nature of wrongs. The answer to the question of whether the
defendants state of mind concerning consent is part of the nature of the wrong is
not immediately apparent.
But even if the wrong is properly described without referring to the mens rea,
that is not to say that features of the conduct that are currently captured by
mens rea terms ought to be pushed into the realm of defences. On the account
defended here, what is central to the issue is whether the defendants state of mind
ought to constitute part of the description of what he is convicted for. My sugges-
tion is that there is at least some good reason to think that it should. Consider the
description: he had intercourse with her and she didnt consent. That seems to
capture something significant about the wrong that has been perpetrated. But it
still seems to me natural to ask at least whether he had good reason to believe that
she was not consenting. If she was not consenting, the fact that he had good rea-
son to believe that she was not seems central to capturing the full magnitude of
what he has done. It seems to me at least plausible that intercourse without con-
sent properly captures, at least in a minimal way, the wrong that the defendant
has perpetrated. But that he did not have good reason to believe that she was con-
senting adds to the description of his conduct in a morally significant way. Even if
the wrong is properly described without the mens rea, that is not to say that the
offence definition should not include the mens rea term.
That is to be distinguished from the role of coercion, for example. If the defendant
perpetrates an assault, the fact that he was not coerced says little further about the
magnitude of the defendants conduct. That issue is not sufficiently differentiated
from the host of other factors that might have played a role in exonerating the
defendant, but did not do so in fact. When the defendant is convicted of rape, on
the other hand, the defendants state of mind and attitude towards consent seem
to me central to the proper full description of his conduct, whether or not his state
of mind and attitude are central to the nature of the wrong.
One further caveat about the nature of offences is worth making here. A crim-
inal offence may be properly defined even if it is not true that all forms of conduct
Rule-Violations and Wrongdoings 73.
The Structure of Criminal Responsibility 115

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.

4.2 Categorising Defences

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

In theoretical writing on categorisation, two different kinds of argument tend to


be pursued. Firstly, there is work which attempts to show the nature of particular
defence categories in quite general terms. So there is argument between different
theories of justification and different theories of excuse. And such argument
leads to the line between justification and excuse being drawn in different
places. Secondly, there is work which attempts to show which category particular
defences fall into. Is duress best thought a justification or an excuse? Is insanity
best thought an excuse or an exemption?
Less work has been done, however, which reflects upon what we are attempting
to categorise and why, how many categories we should adopt, and what we should
expect of categorisation in general. With regard to substantive defences, two
different general schemes will be reasonably familiar to theorists of criminal law.
There are bipartite schemes and tripartite schemes. Bipartite schemes distinguish
only between justifications and excuses. Tripartite schemes distinguish between
exemptions, justifications and excuses. The central difference between these
schemes with regard to the categorisation of particular defences is that the insanity
defence tends to be included within the realm of excuses in bipartite schemes
whereas it tends to be the paradigmatic case of an exemption in tripartite schemes.
The remainder of this chapter will be concerned with what we are attempting
to categorise, what we should expect from categorisation, what principles there
are that govern how we should categorise and finally to defend the tripartite
categorisation.

4.2.1 What Are We Attempting to Categorise?


When we distinguish between justifications, excuses and exemptions, what are we
attempting to categorise? At first sight it may seem that the answer to this question
is very obvious. We are attempting to categorise defences. But that obvious answer
is ambiguous. For there are defence-types and defence-tokens. Self-defence,
duress, provocation, insanity and involuntary intoxication are all examples of
defence-types. But there are tokens of each defence-type. A particular instance in
which D defends himself against V is a token of self-defence. A particular instance
in which D attacks V whilst involuntarily intoxicated is a token of involuntary
intoxication. The question, then, is whether, when we categorise, we are attempt-
ing to categorise defence-types or defence-tokens. For example, are we attempting
to decide whether duress is a justification or an excuse defence? Or are we attempt-
ing to decide whether particular instances of duress are justified or excused?
It is very common to suppose that defence categories are to be used to categorise
types rather than tokens. For example, self-defence is very commonly categorised

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

as a justification qua type. Provocation, on the other hand, is very commonly


categorised as an excuse qua type. Duress is often categorised as an excuse, but
some authors see duress as a problematic case which is difficult to categorise.
Categorisation into types is also common in the law. For example, the Model
Penal Code classifies defences as either justifications or excuses according to type.
I suggest that categories of defence such as justification, excuse and exemption
are best understood as categorising defence-tokens rather than defence-types.
Here is the short reason why. Defence-types typically refer to kinds of event which
stimulate a response of some kind or other from the defendant. So the defence of
provocation explicitly refers to provocative conduct. The defence of self-defence
implicitly refers to an attack on the defendant by another. The defence of duress
implicitly refers (amongst other things) to a threat by another to the defendant.
The distinction between defence categories, on the other hand, is best under-
stood in relation to different general explanations of why the defendant is not
criminally responsible for his action. Exemptions operate where the defendant is
not the kind of agent to be held responsible for his actions in general. Justifications
operate where the defendant acts in a way that the law regards as morally permissi-
ble. Excuses operate where a capable defendant ought not to be held criminally
responsible despite having acted in an impermissible way.
Now, the idea that we ought to categorise defences according to type supposes
that a particular kind of event, to which a defence-type refers, can only be morally
relevant to the criminal responsibility of defendants according to one particular
kind of explanation. So if duress, qua type, is an excuse, the suggestion is that no
instances of duress are best explained by virtue of the fact that the defendant has
acted in a permissible way. If self-defence, qua type, is a justification, the sugges-
tion is that, where the defendant is attacked by another, he will never be entitled to
a defence unless he can show that his conduct was permissible.
But there seems little reason to suppose that this is generally the case. This is
best shown by considering some problem cases. Rod is credibly threatened by Rita
that, unless he robs the post-office with a gun and gives her the money, Rods
daughter will be shot in the leg. Vlad is credibly threatened by Veronica that,
unless he robs the local post-office with a gun and gives her the money, Vlads
daughter will be killed. Now, it should be noted that there may be disagreement
about how best to evaluate these problem cases. I will have much more to say
about the specific evaluation of such cases in the later chapters of this book. But
even if the evaluation that I suggest here is not successful, there ought at least to be

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

response. Other defendants may not be criminally responsible because although


the violent response was not warranted, their ability to reason about the proper
response was distorted in the light of justified anger.
There may, of course, be defences where any token of that defence-type will fall
within a single category. For example, involuntary intoxication may only plaus-
ibly be categorised as an excuse. This will even more obviously be the case if we
adopt a bipartite scheme. There is no question of the defendants mental disorder
justifying his conduct. But we should not suppose that there are no defences
that resist categorisation according to type. The claim that I will defend through-
out this book is that most defence-types are resistant to neat categorisation on the
best scheme available. Consequently, we should aim to categorise defence-tokens
rather than defence-types.

4.2.2 The Principles of Categorisation


I have defended the idea that we ought to attempt to categorise defence-tokens
rather than defence-types. Different tokens of the same type might be grounded
in different kinds of explanations. They are of the same type because each explana-
tion is attached to the same kind of event. Categories of defence, I have suggested,
are distinguished according to the explanation as to why the defendant is entitled
not to be held criminally responsible for his actions. They are not grounded by
distinguishing between the kinds of event that lead to the conduct to be
explained.
What can help us to decide how many categories to adopt, and how to distinguish
between categories? In the realm of the distinction between justification and excuse,
the focus of some writers has been on cases of conflict and cases of third party inter-
vention. These problem cases, it is supposed, can illuminate cases of justification.
Firstly, it has been suggested that, where the actions of two defendants conflict,
they cannot both be justified. So if D1 and D2 both think that they are defending
themselves against the other, it cannot be that both are entitled to a justification. If
D1 and D2 perceive their circumstances identically they can, at best, both be
excused. Secondly, it is sometimes claimed that if D1 is justified in defending him-
self against D2, D3 must be entitled to assist D1 in his defence. And this is not
true if D1 is only excused. These cases are sometimes used to develop the distinc-
tion between justification and excuse. These examples have motivated some to
think that justification is dependent on objective facts rather than the reasons for
which the defendant acts.
In contrast, I agree with Douglas Husak that this is a methodological tail wag-
ging the dog. How we determine our answers to these kinds of question ought to

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

be determined by the proper distinction between justification and excuse rather


than the other way around. Solutions to particular difficult cases ought not to
drive general theoretical reflection on categorisation. If the deepest and most prin-
cipled categorisation cannot neatly help us to determine liability in these cases,
that does not provide much reason against categorising in that way.
For example, the idea that justifications cannot conflict seems mere stipulation
without some further theory of what it means to be justified. It is not straight-
forwardly and obviously the case that two defendants who think that they are
attacking each other are not both justified in acting as they do. That would be the
case only if what it means to be justified is to do an act which achieves the best pos-
sible outcome. But that is a theory of justification that requires defence indepen-
dently of cases of conflict.
What should we hope for from our categories, in that case? One hope might be
that each category of defence should reflect a particular kind of moral claim.
Justifications, it is plausibly claimed, are cases where the defendant has done what
is permitted. Exemptions apply to defendants who claim that they are not respons-
ible for their actions in general. There are certainly things that are appropriate to
say about justifications and exemptions in general (although I think that it is more
difficult to provide what John Gardner calls a general gist of excuses).
However, that there are general things that one might say about certain groups
of defences does not appear to be a very good reason to categorise. After all, there
are things that can be said at a more general level about groups of defences that do
not warrant categorisation. For example, we might distinguish cases where the
defendant acts for the sake of others from cases where the defendant acts for her-
self. We might distinguish cases involving the preservation of property from cases
involving the preservation of life. Why should we not use these as the basic organ-
ising principles to guide our theoretical writing on criminal defences?
A further problem is that we can distinguish between different kinds of claim
with increasing moral precision. As I will argue in Chapter 5, for example, there
are different kinds of case that fall under the general idea of an exemption. Should
we think of these as separate categories of defence or are they instances within the
same category?
In the end, if categorisation is important, it is not simply because it can be done,
but rather because there is some moral reason why it ought to be done. What we
should look for, I suggest, is the organisation of our defence terms that helps to illu-
minate in the most morally significant way, but also in the way that is central to
criminal justice institutions, why the defendant ought not to be held criminally
responsible for his conduct despite having fulfilled the offence conditions. That is
not to say that there will be only one plausible answer as to how we should go about
categorising. But our method of categorisation should at least be defended both in a

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.

4.3 Defending the Tripartite Scheme

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.

4.3.1 The Distinction between Justifications and Excuses


It is commonly accepted that there is a significant distinction between justifica-
tions and excuses. Despite its apparently limited practical significance, the prob-
lem of where to draw the boundary between these categories has generated a large
body of literature. A full analysis of where to draw the boundary depends primar-
ily on the nature of justification. The analysis of the problem tends to revolve
around how to categorise two kinds of problem case.
Case 1: D assaults a jogger reasonably believing him to be a mugger from whom
he intends to defend himself.
Case 2: D assaults a mugger believing him to be a jogger, intending to injure
him, but in a way that, were D to have known the facts, would have
constituted self-defence.
In case 1, if Ds beliefs were true, he would be entitled to a justification. Does
his mistaken belief ground a justification, or is he only excused? In case 2, if Ds
beliefs were true, he would be convicted of an offence. Is he justified in his action?
122 Part I: The Character of Criminal Responsibility

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

See P Robinson Structure and Function in Criminal Law.


See K Greenawalt The Perplexing Borders of Justification and Excuse (1984) 84, Columbia
Law Review 1897.
See G Fletcher Rethinking Criminal Law and J Gardner Justifications and Reasons.
Paul Robinson defends the idea that the defendant is guilty of an attempt in Structure and
Function in the Criminal Law 11112. Antony Duff is in the exceptional category of thinking that the
defendant ought not to be criminally liable at all at least in some such cases, if the conduct is required.
See Rethinking Justifications (2004) 39, Tulsa Law Review 829.
As Gardner suggests in Justifications and Reasons and The Gist of Excuses.
The Structure of Criminal Responsibility 123

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.

4.3.2 The Distinction between Excuses and Exemptions


The category of exemptions is usefully explained in relation to the idea of status-
responsibility that I developed in Chapters 1 and 2. An agents entitlement to an
exemption, I claimed there, is related to his capacities, understood in a general
sense. A lack of the relevant capacities may be important in determining whether
the agent is status-responsible. Those capacities should be understood in general.
For example, can the agent in general respond to normative reasons? Does the
agent in general form appropriate beliefs? Can the agent in general carry out her
plans? It is only if the agent has the appropriate capacities to the appropriate
degree that we can hold her responsible for any particular failures to respond to
normative reasons, to form appropriate beliefs or to carry out her plans.
This distinction between status-responsibility and attribution-responsibility
rests on the following idea. There may be agents whose status is such that they lack
responsibility for their actions in general. If that is the case, it matters not under
what conditions their actions are performed. They will lack responsibility for
those actions simply on the basis that they lack the appropriate status to be
responsible for any of their actions. If the agent lacks the appropriate status, he is
entitled to an exemption.
Here we should draw a distinction between exemptions and defences. The idea
of a defence is that an agent must provide himself with some kind of appropriate
explanation for his action which either shows that he lacks responsibility for that
action or that he lacks the culpability that is necessary to make the imposition of
criminal responsibility appropriate. Where the defendant is entitled to an exemp-
tion, on the other hand, such explanations of the action are not required of him.
An agent who is exempt from responsibility is not an appropriate agent from
whom we can demand an explanation.
For this reason, using an idea developed by Antony Duff, we might say that status-
responsibility is a precondition of attribution-responsibility. It is a condition

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

that makes the investigation of the conditions of attribution-responsibility


appropriate. This account of the distinction between issues of status-responsibility
and defences is closely related in its basic structure, if not in the details, to
accounts developed by John Gardner and Michael Moore. In Gardners terms, an
agent who provides himself with an excuse asserts what he calls his basic respons-
ibility, but he does this in order to deny what he, following Ronald Dworkin,
calls his consequential responsibility. In Moores terms, it is only moral agents,
those who have sufficient rationality and autonomy to be proper addressees of the
primary norms of morality, who can be judged for having done something that
breaches ones obligations and for which ones level of culpability can be estab-
lished. Gardners basic responsibility and Moores moral agents are related to
the idea of status-responsibility that I develop here. Gardners consequential
responsibility and Moores idea of having done something which violates ones
moral obligations are something like attribution-responsibility.
Whilst Gardner, Moore and myself share an understanding of the basic struc-
ture of criminal responsibility, we differ in how that structure is to be fleshed out.
The question in this section is how best to draw the distinction between status-
responsibility and attribution-responsibility, and through that the distinction
between exemptions and other conditions of criminal responsibility.
The distinction between status-responsibility and attribution-responsibility,
I have suggested, is to be drawn between aspects of responsibility that concern the
agent qua agent in general and aspects of responsibility that concern the relation-
ship between a particular action and the agent. This distinction between the gen-
eral and the particular has not been drawn sharply in this book so far. The
question for this section is how best to understand generality in this context.
We can reflect on this a little if we consider the kinds of condition that can
ground an exemption. Those who distinguish between exemptions and excuses
commonly argue that it is particularly children and those with mental disorders
that are entitled to exemptions. Others must claim excuses. For example, Jeremy
Horder writes that:
In a civilised legal system, only those who have the intellectual and moral capacity to
understand the significance of their conduct will fall to be judged under its rules of crim-
inal responsibility. Lacking such a capacity, under-age children and the insane are excluded
from judgment under those rules, and the laws commands are not addressed to them,
either generally (in the case of under-age children), or in particular circumstances (in the
case of the insane).
On this construction exemptions from responsibility apply not only to defendants
who generally lack the ability to respond to the demands of the law, but also those
who lack that ability in particular circumstances.
The Mark of Responsibility (2003) 23, OJLS 157. Dworkin uses the term in Sovereign Virtue:
The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000) 287.
Prima Facie Moral Culpability (1996) 76, Buffalo University Law Review 319.
See, for example, J Horder Determinism, Liberalism, and Criminal Law 1678.
126 Part I: The Character of Criminal Responsibility

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.

R v Windle [1952] 2 QB 826. MNaghten (1843) 10 C & F 200, 8 ER 718.


See, for example, R D Mackay Mental Condition Defences in the Criminal Law (Oxford: OUP,
1995) 8190 and the Scottish Law Commission Report on Insanity and Diminished Responsibility
(Edinburgh: The Stationery Office, 2004) 17.
128 Part I: The Character of Criminal Responsibility
Some factors bearing on basic responsibility such as infancy do set status conditions in
this sense. But others do not. One may be responsible for one thing and not for another
thing one is doing at exactly the same time. For instance, if I am suffering from a delusional
mental illness, my responsibility is only absent in respect of the actions which are explained
by the delusions. And maybe even the delusions are occasional.
Now, it is true that actions performed under delusions, in the right circumstances
at least, are actions for which the agent is not responsible. Even here, as I will show in
Chapters 5 and 12, it is important to note that citizens may have a duty to take
responsibility for their disorder to minimise the risks to others that they pose. Hence,
they may still be required to account for their conduct, to show that they are not
responsible for it. But is the categorisation that Gardner suggests appropriate? Ought
we to see both questions concerning the status of the defendant in general and ques-
tions concerning particular acts of the defendant within the same category? Or altern-
atively ought we to see actions for which the agent is not responsible as grounding
one kind of excuse? Gardner argues that actions which the agent is not responsible
for are never excuses. I think that such actions are better seen as excused.
I suggest that the central distinction is between those who have the status to be
responsible agents and those who do not. Agents who do not have the appropriate
status ought to be considered exempt from criminal responsibility. Those who do
have the appropriate status, but who are not responsible for a particular action, ought
to fall into another category within the criminal law. If they have brought about the
relevant action, then the proper category of defence for them is that of the excuse.
How are we to make these decisions as to categorisation? How are we to decide
between my categorisation and that recognised by Gardner and Horder? Perhaps
it might be argued that there are a number of different ways in which we might
draw the line between exemptions and excuses. There is a demand to be clear in
our categorisation, it might be argued. But as long as the categories are clear, there
is no further set of reasons to prefer one form of categorisation over another.
I think that it is more morally coherent to include within the category of exemp-
tions only claims about the defendants status in general. And that is because the
distinction between status and attribution is of central moral significance.
Consider the defendant who suffers from temporary delusions that Gardner raises.
There seems little reason to distinguish in terms of category between such a defendant
and the involuntarily intoxicated defendant. Both defendants are claiming that
they lack responsibility for the actions that they performed at the time of acting.
But they are not claiming that they are agents who generally lack responsibility for
their actions. Admittedly, a mental disorder tends to be a more or less permanent
feature of the agent, even if it only has occasional symptoms. But there seems
little reason why that should be decisive with regard to categorisation.
The Mark of Responsibility 162. The Gist of Excuses 5879.
The law uses the problematic distinction between internal causes and external causes roughly
to approximate this idea. See, for example, R v Kemp [1957] 1 QB 399, R v Sullivan [1984] AC 156,
R v Quick [1973] QB 910 and R v Hennessy [1989] 2 All ER 9.
The Structure of Criminal Responsibility 129

Furthermore, when we consider sleepwalking the issue becomes even more


complex. A defendant who commits a criminal offence whilst sleepwalking for the
first time is clearly not responsible for his action. But that is not because he is
exempt from responsibility. If we are to say that exemptions should apply to sleep-
walkers, then we all fall into the category of agents who lack what Gardner would
call basic responsibility in respect of some things. For we all lack basic responsibil-
ity with regard to actions that are the result of sleepwalking, involuntary intoxica-
tion and the like. But that results in the collapse of the distinction between
exemptions and excuses.
Now, it might be argued here that I have only shown that the distinction
between exemptions and excuses is not sharp. But to say that a distinction is not
sharp is not to show that it is incoherent. We should not expect all relevant moral
distinctions to have sharp boundaries. That there are cases which could fall into
one category or another does not indicate that the categorisation is flawed. So the
distinction between youth and maturity is morally significant, but there are indi-
viduals who do not fall clearly into one category or another. The distinction
between exemptions and excuses, it might be argued, is just like that. And if that is
the case, it might also be supposed that my objection is no objection at all.
But the argument that I have presented is not merely that the distinction
between exemption and excuse that Horder presents, and that is implied by
Gardners account of responsibility, is not sharp. It is rather that the grounds on
which we are to draw that distinction are unclear. What principles are we to use to
distinguish between cases in which the individual is exempt from responsibility
for his action and cases where he is not exempt, but lacks responsibility for that
action?
The answer might be that all agents who lack responsibility for their actions are
exempt from responsibility. But that seems to inflate the category of exemptions
much too far. It conflates two kinds of cases in which an agent might not be held
to account for an action. The first kind of case is the agent who is not a responsible
agent at all, regardless of the action that he performed. The second kind of case is
the responsible agent whose action did not reflect on him qua agent. It is only the
first, I think, that should be exempt from responsibility.

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.