Partial Excuses in the Criminal Law

Abstract

IN recent years there has been considerable interest in theories of excuse within the criminal law. These discussions have often centred on efforts to formulate a theory of excuse which would account satisfactorily for the range of currently accepted excusing conditions in the criminal law.' To some extent, the writers' almost exclusive attention to excusing conditions (i.e. those excuses which operate to relieve a defendant of criminal liability entirely such as insanity, automatism or duress) reflects the important practical and procedural divisions which exist between the substantive criminal law on the one hand and the discretions of prosecution, sentencer and Parole Board on the other. Yet excuses can operate, formally or informally, at these other levels too.2 Crucially, most writers appear to assume a clear distinction between excusing conditions and mitigating excuses (ix. those excuses taken into account by way of sentencing discretion, such as mistake of law which does not negative mens rea, most cases involving the defendant's good motive for breaking the criminal law, or provocation in crimes other than murder). The basis for this assumption is rarely articulated, and when it is, it seems unconvincing. Those writers who urge or assume a sharp distinction between excusing conditions and mitigating excuses are faced with something of a problem by the existence of " partial excuses " in the criminal law. Partial excuses fit into neither group. Although they do not operate to relieve the defendant of criminal responsibility entirely, they are taken into account by the jury, prior to the verdict. They affect sentence, sometimes drastically, but they also have the important characteristic effect of changing the category of offence with which the defendant is ultimately convicted. In English law the two leading partial excuses are provocation and diminished respon~ibility.~ Typically, the writers strive to force partial excuses into one or other of their groups, usually that of mitigating excuse. One such response is that of Professor Hart 4: " Sometimes, however, legal rules provide that the presence of a mitigating factor shall always remove the offence into a separate category carrying a lower maximum penalty. This is ' formal ' mitigation and the most prominent example of it is provocation which in English law is operative only in relation

Manifest MadnessMental Incapacity in the Criminal Law

“…71 Wiener Reconstructing the Criminal 131. As Wiener writes about juveniles, 'their guilt (like that of lunatics) was more questionable than that of adult offenders, although (also like lunatics) they seemed more ruled by impulse and thus in the long run even more of a social danger' (131). For a discussion of gender, 'madness' and crime in the context of infanticide, see my Chapter 8. disability, childhood gradually came to be accorded a sui generis notion of difference that did not reduce to incapacity.…”

“…As mentioned above, the principle that the existence of an internal cause precludes reliance on the automatism doctrine was developed in the first instance decision of Kemp, and confirmed by the House of Lords in Bratty. 131 In Bratty, the House of Lords stated that because, in that case, the only basis for the allegedly unconscious act was a 'disease of the mind' (in that case, arising from psychomotor epilepsy), 126 Longman, 2003) 227. This disjuncture between the voluntariness requirement and exculpatory automatism has been regarded as something of a paradox in criminal law.…”

“…To me, viewed in this light, the rule echoes the concerns of the older 'reconstructive' criminal trial process, suggesting that the court continues to be a 'witness to the truth' of insanity. 131 The Burden of Proof: Legal or Evidentiary…”

“…130 The erosion of special procedures for infancy has been referred to as the 'adultification' of youth justice. 131 An example of this process of 'adultification' is the advent of anti-social behaviour 126 129 It is interesting to note that the significance of the actus reus of the offence with which a young person has been charged has spilled over from non-exculpatory doctrines into the sphere of criminal offences. The Sexual Offences Act 2003 provides that a person under 18 commits an offence if he does anything that would be an offence if he were aged 18 (s 13).…”

“…Francis Bennion has argued that this offence rests on the mistaken assumption that only the actus reus is significant when a young person is alleged to have committed a serious offence, referring to this as a 'defective deeming' provision: see Keating argues that children are held to be responsible at the age of 10 to make them responsible rather than as an acknowledgment that they are responsible at this point. 131 See J Fionda 'Youth and Justice', in J Fionda (ed) Legal Concepts of Childhood (Oxford: Hart, 2001). orders, which have undercut the practical significance of the age of criminal responsibility, as these orders mean that children under 10 may be exposed to quasi-criminal proceedings.…”