Introduction
This chapter outlines a bounded causal theory to provide a rationale for partial excuse that reflects more closely its flexible boundaries in practice, as explored in Chapter 6, and to legitimise the proposal for a Universal Partial Defence (UPD) that follows in Chapter 8, as an expanded version of the status quo. To do so, however, it is necessary to overcome three major objections to the concept of causal theory in the context of criminal excuses: the fear of a universal legal excuse, the fact that not all those with a similar circumstance to the defendant commit crime, and the problem of proving the link between circumstance and criminal act.
In Part II, the Real Person Approach (RPA) diagnosed that the criminal law is running a moral and social justice deficit given its lack of recognition of significant social factors (like past trauma and environmental and social deprivation) in evaluations of blameworthiness, factors that have been shown to impede the executive capacities of individuals making it more difficult for many to avoid wrongdoing.Footnote 1 However, seeking to expand the basis of exculpation is contentious because to do so is to challenge the core legitimacy of the criminal law. For, to include circumstance in considerations of culpability is to promote a causal understanding of criminal action which is underpinned by a deterministic explanation of human behaviour. A causal theory based on full determinism is problematic in the eyes of the law because it undermines the basic premise of criminal responsibility: that we can and should hold the individual responsible for their wrongful action. If such action is shown to be caused by factors beyond the person, then the law loses its moral authority to ascribe individualised blame. This chapter seeks to bridge the chasm between these seemingly disparate standpoints by creating space, through a bounded causal rationale, for the recognition of social factors at the point of exculpation in the criminal law (enhancing its RPA justice credentials), but in a way that does not collapse into absolute determinism (thus maintaining its moral authority and feasibility).
A related issue that appears to undermine a causal approach is the fact that not all people from deprived backgrounds, and not all those who have suffered trauma in childhood, commit crime. Yet those with adverse childhood experiences and those with deprived backgrounds are disproportionately represented in our criminal justice system. So how do we examine the claims of such defendants without (again) appearing to upend the entire criminal law enterprise? Falk recognises the significance of such claims in her critique of ‘novel’ defences,Footnote 2 when she says that such defences and their future incarnations ‘present a challenge to our system of justice’.Footnote 3 Her response to this challenge is to use such defences to ‘continually adjust the values of our nation to the current realities of our lives’.Footnote 4 In this light, I argue that we can recalibrate societal norms towards the lived experience of those most often before the courts through the medium of the UPD, by virtue of its partiality, which both facilitates the consideration of vulnerability (e.g. to social factors like severe deprivation) by reducing blame where appropriate, while still protecting (a more generous reading of) the traditional concept of agency in the law, by holding the individual responsible for their wrongful conduct and rejecting complete exculpation.
A third core objection to causal theory as an explanation for criminal defences relates to the issue of evidence. For, how is it possible to show that an aspect of a person’s circumstance accounts for their criminal act? Even if an expert can attest to the fact that a circumstance – for example, extreme deprivation – impacts the volitional capacity of a defendant, how can we tell that it impacted them in the instance of the criminal offence in question? And how can we be certain that their impulse control was overcome at the time of the act, and it was not merely a case of poor decision-making? These conundrums are not exclusive to the question of the inclusion of circumstance, however; the inability to read minds endures as a thorn in the side of the criminal law when it comes to questions of mens rea and exculpation. Yet the law operates regardless, tolerating uncertainties about a defendant’s mindset at a fleeting moment in time, and forming decisions based on a normative benchmark informed by expert testimony where appropriate. This chapter explores the feasibility of adapting this practice to facilitate the requirements of the UPD.
The chapter begins by outlining the bounded causal account and demonstrating how it provides a fuller explanation of the existing partial defence of diminished responsibility (notwithstanding the marginalised position of causal theory itself within criminal law discourses). The UPD aims to deepen the role of partial excuse in the law through the inclusion of circumstance, so it relies on causal theory (at least in part) to legitimise its elevated status. The next section interrogates the three major objections to causal theory, as outlined, finding that the conceptual reasons to exclude circumstance at the point of exculpation are somewhat soluble. The chapter then goes on to show how a bounded causal theory, as manifested in the UPD, may be used to provide a more realistic, informed, and nuanced account of the person at the point of exculpation, in accordance with the aims of the RPA.
Bounded Causal Theory as an Explanation for the Diminished-Responsibility Defence
The guiding methodology of this book is to take a more bespoke approach to areas where injustice may arise in the criminal law. As such, analysing partial excuse as a discrete category allows us to employ the language and ideas developed in the excuse literature with a fresh perspective. Thus, it is possible to agree with Horder and Lacey that different rationales, such as capacity, choice, character, and risk, may all be present across various defences and, indeed, can be evidenced in partial excuse.Footnote 5 Further, we can concur with Farmer and Ramsay that such nuanced accounts are demonstrative of the criminal law in its socio-historical context.Footnote 6 The aim here, then, is to highlight more pointedly that, based on an analysis of the doctrine of diminished responsibility in practice as set out in Chapter 6, dominant explanations of excuse pay insufficient attention to causal theory as a means of conceptualising the role of circumstance in evaluating the defendant’s blameworthiness in our time and place. This lack of regard, of course, may relate to the fact that proposed excuses that rely more heavily on a causal account – for example, a poverty defence or an abuse excuse – have never gained a foothold in criminal law doctrine, implying that causal explanations are of little relevance here. Indeed, though there was a time when a causal account of excuse was relatively popular,Footnote 7 particularly evidenced by the writings of Bazelon and Delgado,Footnote 8 very little support for the view is found in more recent writings, with most eminent theorists supporting a compatibilist viewpoint and/or openly rejecting a causal account of excuses.Footnote 9 In this section, I argue that causal theory has a role to play in the explanation of partial excuse as it exists in the criminal law, and as exemplified by the operation of the diminished responsibility defence. Though causal explanations may not be formally acknowledged in legislative definitions of the defence, the law in practice demonstrates a propensity to hold both capacity and causal accounts of excuse contemporaneously in assessments of blameworthiness. In line with Horder’s approach of supplementing rather than supplanting,Footnote 10 then, the aim of this chapter is not to supplant capacity theory, but rather to supplement it with a bounded causal account in the particular context of partial excuse.
According to the dominant understanding, excuses act so as to negate the free choice to do wrong which punishment aims to counter.Footnote 11 The implication of ‘voluntariness’ in this account implies a link between theories of capacity and choice with a view to generating a standard of criminal responsibility. The classic statement of this concept was developed by Hart who asserted that ‘[t]hose whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities’. He goes on to say that ‘[w]here these capacities and opportunities are absent … the moral protest is that it is morally wrong to punish because “he could not have helped it” or “he could not have done otherwise” or “he had not real choice”’.Footnote 12 The basic scheme offered by Hart separates excuses into two categories – those which involve a denial of the physical or mental attributes which are a precondition of successful and consistent rule-following, and those which involve a denial that the normal conditions under which people with those attributes are expected to conform their behaviour to law subsisted. Thus, insanity, diminished responsibility, and involuntary behaviour involve a denial (or partial denial) of the capacity to conform one’s behaviour to the law. In other words, the actor’s conduct was not the expression of a deliberate choice on his part.Footnote 13 On this approach, then, it is not enough that people act in an antisocial fashion; it must be appropriate to blame them and, moreover, it must be fair to punish them.Footnote 14 As such, the capacity approach is inherently normative in nature.
Diminished responsibility as it stands, then, is built on this capacity-based notion of responsibility which situates the analysis of culpability within the psychology of the defendant. Therefore, it (partially) excuses on the basis of the defendant’s control over their conduct being overborne by a condition internal to them, as supported by medical evidence. This approach speaks to explanations of criminogenic behaviour that are set within an agentic frame. As Honoré puts it: ‘Agents are responsible because the conduct is theirs. They have intervened in the world and changed it. Their behaviour is the cause of that change.’Footnote 15 Yet it is clear from the analysis of the diminished responsibility defence in practice in Chapter 6 that circumstance plays a much more significant, though nuanced, role in explaining criminogenic acts in the law than it presently formally admits. In Chapter 6, it became clear that both fact finders and experts are not immune to stretching the definition of ‘abnormality of mind’ or ‘abnormality of mental function from a recognised medical condition’ where the interests of justice so demand. For example, the experience of trauma in childhood, on the face of it, falls outside the scope of the defence; however, it has featured as relevant to the defence in both Scotland and the US.Footnote 16 Further, and notwithstanding the push by policymakers towards a more medicalised definition in England and Wales, circumstances such as mercy killings continue to be considered in the context of the partial excuse.Footnote 17 Thus, capacity theory alone, as applied to the diminished responsibility defence, fails to account adequately for the courts’ flexible interpretation of the doctrine in practice. Because of the agent-centric nature of the capacity approach, it is unable provide a full explanation for the defendant’s criminal act because criminogenic behaviour set within a broader circumstance frame (e.g. environmental deprivation, childhood trauma, past abuse) is deemed to be excluded from the assessment of culpability.Footnote 18 Such prior factors (though they may be present) ought not to figure in the law’s assessment of the defendant’s conduct, owing to its compatibilist credentials.Footnote 19 Therefore, from the perspective of a real-world philosophical approach,Footnote 20 a more complete evaluation of culpability in the context of diminished responsibility requires making conceptual space for consideration of circumstance, alongside the present dominant capacity-based explanation of partial excuse.
In criminal law theory, accounting for circumstance in evaluations of blameworthiness is largely framed as the promulgation of a causal theory of the criminal law or of a form of ‘causal determinism’.Footnote 21 From a philosophical viewpoint, Corrado explains that:
[a]n event may be said to be caused if conditions prior to it were sufficient, causally, to bring it about. Conditions are causally sufficient if those conditions, together with the appropriate laws of nature, entail the occurrence of the event.Footnote 22
The core problems pertaining to causal theory are discussed in detail in the next section. Suffice it to say here that attempts at recognition of causal theory in criminal doctrine have failed owing to concerns regarding its framing as absolute when applied to doctrine. For example, Bazelon’s proposed ‘rotten social background’ excuse drew considerable criticism because the consequence of a successful defence was acquittal.Footnote 23 I do not stand in opposition to such criticisms but argue, rather, that much of what is problematic with causal theory may be addressed by limiting its reach, so that what may be identified as valuable in a causal understanding of excuse is salvageable. In the context of this book, causal theory is bound in two ways that are discussed in more detail in the sections to follow but are helpful to outline here. First, causal theory is bound by place, in the sense that it is applied discretely to partial excuse, as opposed to accounting for all criminal law excuses, with the result that even where circumstances form part of the culpability determination, a defendant is not acquitted and still retains responsibility for the crime. Second, the theory is bound by its nature through framing it as a partially deterministic practice.Footnote 24 A partially deterministic causal explanation is one with a particularised, as opposed to general, application. In other words, causal explanation is considered in the context of an assessment of a person’s moral blameworthiness at the point of exculpation, as opposed to being applied generally to a class of people. Giving voice to causal theory without silencing the dominant capacity account is possible because causal theory does not claim to be a universal theory of full excuse. Its utility lies in the fact that it can be framed as ‘partially determinist’, in that, as Kaye notes, it does not mandate that all excuses in criminal law have causal explanations; rather, that it simply helps explain some of the criminal law’s excuses where a causal explanation exists.Footnote 25
In lieu of explaining human conduct in solely narrow, agentic terms, then, this chapter argues for a bounded causal theory as an explanation of diminished responsibility in order to account for circumstance, providing a more complete representation of the defence, and a more forthright engagement with the relevant factors that have contributed to an individual’s behaviour. Just as capacity theory benefits from a causal supplement in terms of allowing more knowledge of the defendant to be considered as part of evaluations of blameworthiness, causal theory also benefits from being wedded to a capacity framework. For, the problem with including circumstances under causal theory, of course, is that you cannot hold circumstances responsible for crime: they cannot be put on trial, they cannot be punished, they are, in a retributive sense, ‘weak’.Footnote 26 Its bounded nature, however, means that a relevant circumstance can be held, and its significance examined, at the point of culpability evaluation of a particular defendant, safe in the knowledge that they will not ‘get away with it’. Consequently, an account of partial excuse that acknowledges a place for both capacity and causal theory attends more closely to the practice of the defence, thus bridging the chasm between the medicalised construct of the defence definition and the more flexible operation of the law on the ground. Finally, a bounded causal account of partial excuse is feasible because, as established in Chapter 6, the ultimate test for diminished responsibility is normative in nature, and thus vulnerable to the dominant values of the culture it inhabits. Because the test is not strictly medical, it allows the possibility of causal theory, and not just capacity theory, to explain more fully the defendant’s actions.
The Place of Circumstance in Criminal Law
The flexible interpretation of diminished responsibility in practice bolsters the call for an expanded understanding of partial excuse beyond the confines of a capacity-based approach. A formal reading of the doctrine as it stands, however, cannot make provision for the wider circumstance of the individual in its blame evaluations because to do so would challenge the dominant compatibilist explanation of the criminal law. On the face of it, then, the fact that the inherent structure of the criminal law appears at odds with including circumstance, together with the lack of enthusiasm in the literature for a causal account, suggest considerable conceptual barriers to the UPD. The purpose of this section is to address the core theoretical criticisms of the inclusion of circumstance in evaluations of blameworthiness, as expressed in a causal dialect. The section begins by outlining the compatibilist standpoint. Next, it distinguishes the concept of agency at the point of excuse (exculpation) from the concept of agency at the point of the voluntary act requirement (inculpation), as a justification for limiting the application of causal theory, lending credence to a bounded causal theory as the basis for the UPD.
Compatibilism
The criminal law adheres to the concept of free will in so far as it assumes that individuals have the capacity to control their actions except in the most extreme circumstances.Footnote 27 The law may be described as compatibilist because it concedes to situations which can be framed as deterministic, but only in cases where the will of the individual is overridden by virtue of a complete excusing condition, be it internal or external, for example, mental disorder under the insanity defence or external pressure under the defence of duress.Footnote 28 This position is deemed to reflect the fact that routine existence is largely based on the assumption that individuals are generally responsible for their own actions unless there is some superseding cause which detrimentally affects such responsibility.Footnote 29 Beyond such extreme circumstances, compatibilists assert the view that individuals may be held to blame for behaviour caused by factors beyond their control.Footnote 30 According to Ashworth, such an approach makes acceptable the fundamental proposition that behaviour is not so determined that blame is generally unfair and inappropriate, yet at the same time, in certain circumstances, behaviour may be so strongly determined that the normal presumption of free will may be displaced.Footnote 31
There are two key battlegrounds where philosophical debate regarding the role of voluntarism and determinism in the criminal law plays out. The concept of agency is of particular significance both at the point where an individual is deemed to meet the threshold of subject of the law as assessed through the ‘voluntary act requirement’ (VAR), and again when their culpability is being evaluated in the context of the relevance of a defence. To conflate the notion of agency inherent at each stage brings confusion, because each stage has a distinct purpose, that is, criminalisation and culpability evaluation, respectively.Footnote 32 A primary function of criminalisation is to determine whether or not an individual is an agent for the purposes of holding them responsible for a particular crime, whereas the purpose of culpability evaluation is to assess whether and to what extent we should blame the individual for the act for which the law deems them liable. This section distinguishes the approach of the criminal law to the construct of agency at each point in the criminal responsibility ascription process, with a view to defining more specifically what we mean when we talk about agency at the point of exculpation. This analysis is integral to the containment of causal theory to the realm of excuse, and partial excuse, in particular.
Inculpation Agency versus Exculpation AgencyFootnote 33
The notion of a bounded causal theory requires the construct of the agent at the point of exculpation (exculpation agency) to be distinguished from its conceptualisation at the point of inculpation (inculpation agency). Inculpation agency is underpinned by the VAR principle, which necessitates that an individual was acting freely when they committed a harm in order to justify their inclusion within the boundaries of criminal responsibility in the first instance. An ‘act’ for the purposes of VAR is underpinned by the notion that a human action cannot be caused by a prior event but is a cause in itself.Footnote 34 John Child defines this brand of action theory as interpreting bodily movement as ‘causally basic’, in that ‘it represents the starting point in a causal chain that opens to include complex descriptions’.Footnote 35 In the context of criminal law, those complex descriptions can entail discussion of whether that chain may be broken by an intervening event (the classic ‘swarm of bees’ example) or the voluntary act of a third party in a given case.Footnote 36 But if the court deems the chain of causation intact, the individual is deemed responsible for the act, and so answerable to the criminal law for their actions.Footnote 37 Thus, inculpation agency is construed narrowly, with a view of the individual as an end in themselves, and with a distinct lack of recognition of their social context. The construct of the agent here is therefore ascriptive (as distinct from descriptive at the point of exculpation), in that it is not a true reflection of the reality of a person in a given context, but it is a means of identifying a person as one of the causes of the acts in question.Footnote 38 For example, in the case of Pagett, the law acknowledges that the act of an individual may not be the sole cause or even the main cause; it need only contribute to the harm to give rise to criminal liability.Footnote 39 There is an acknowledgement by the criminal law here, as there is in tort law to a much greater degree, that there can be multiple causes of an outcome.Footnote 40
The notion of ‘voluntary’ at the point of inculpation is not a fixed concept,Footnote 41 however, and its interpretation has been met with confusion at times. In particular, much ambiguity regarding the interpretation of the VAR stems from its conflation with the defence of automatism. Child’s argument for a basic interpretation of the VAR notes that a shift in the debate from ‘defining voluntariness as an essential ingredient of legitimate criminal blame, to defining involuntariness as a route to exculpation’Footnote 42 caused a particular point of conceptual dislocation of the VAR that led to misunderstanding with regards to its core purpose as gatekeeper of criminal liability. He goes on to clarify, ‘Where voluntariness is essential to criminal responsibility, then its absence results in a lack of inculpation (i.e. the VAR) and it is therefore illogical to speak of an exculpating defence.’Footnote 43 Thus, in order to preserve the inculpatory nature of the VAR, Child argues for the retention of a ‘stripped back’ understanding whereby the voluntariness requirement at the inculpation stage is viewed as ‘an essential condition for responsibility’, providing ‘the route through which we can attribute D’s bodily movements and omissions to her as a moral agent, and through which other offence elements may be linked back to D’.Footnote 44 The question that takes place in an inculpatory context is therefore as follows: ‘[W]as D responsible for the movements of his body; was he in sufficient deliberative control to be held responsible for the harms that occurred?’Footnote 45
Inculpation agency is therefore narrow in terms of its construction of the agent (i.e. not accounting for context) but broad in the sense that it casts a wide net of responsibilisation. Abstracting the individual at this stage makes it likely that more individuals are deemed to meet the VAR because the standard of rationality represents a low bar to entry. The dominant legal paradigm maintains that the ability to choose freely is reliant on an individual’s capacity to reason. The bar is set low because the capacity to reason relates to a general ability to act rationally and conform to the requirements of the law. It does not relate to the specific action of the accused on the occasion of the offence. As Honoré puts it, ‘[w]hen we say that someone can do something (has the capacity to do it) we use “can” in a general, not a particular sense: we mean that the person will in general succeed in doing it if they try’.Footnote 46
Exculpatory agency, on the other hand, is more normatively loaded, and better placed to deal with the wider context of a crime once the basic question of inculpation is met. Indeed, as Child notes, conditions that impede freedom, like duress, for example, rather than being taken into account with a view to narrowing liability in the first instance, should be given space in the realm of excuse: ‘[A]ccepting that D has voluntarily acted, has possibly caused harm, but may be excused for that conduct as a result of surrounding circumstances.’Footnote 47 Thus, excuse marks another significant territory wherein the compatibilist line is drawn as between voluntarism and determinism in the criminal law. It is here that the evaluation of personal blameworthiness takes place when it is claimed by the defendant that their free will has been displaced. Voluntarism dominates (though does not destroy) determinism in the criminal law as evidenced by its agent-centric nature, in addition to the narrow scope of excuses available to defendants.Footnote 48 Whether excuses are explained by virtue of capacity theory or character theory or a combination of both, each theory takes an agentic approach to assessments of blame, to the exclusion of causal accounts of behaviour, towing the narrow compatibilist line of the criminal law.
This book accepts the status quo in terms of upholding a narrow, ascriptive, and decontextualised construct of inculpation agency, but in a ‘stripped back’ sense as Child promulgates. Though such a position may appear counter to the book’s mandate to progress an RPA that relies on a relational account of criminal responsibility attribution, a minimalist interpretation of inculpation agency is, in fact, an important aspect of the legitimation of the UPD. A core facet of this project is to promote the UPD in a way that pushes against, yet coheres, with the law as it stands, in order to take a feasible approach to the advancement of justice. Because establishing the doing of the offence is distinct from assessing blameworthiness, it does not automatically follow that a person who is responsible for an act is also culpable in the sense of deserving a blaming response in the criminal law. By acknowledging this distinction, we can keep the legitimacy of the law intact, but do more in the realm of excuse to recognise the wider circumstances that contributed to the accused’s wrongful conduct. Thus, to achieve the aim of this book, we can confine the purely ‘individualist logic’Footnote 49 to considerations of the VAR, but recognise an expanded construct of exculpation agency that acknowledges both rationality and vulnerability at the point of blame attribution, and in the particular context of partial excuse.
Further, by dealing with voluntariness at the point of criminalisation (through the VAR), as distinct from the role of voluntariness at the point of culpability evaluation, we can answer, or set to one side, at least, the much greater, metaphysical question underpinning the voluntarism and determinism debate, as encapsulated by Moore when he says: ‘It makes sense to say that we are determined or that we are free, but to speak of being partly determined or partly free makes as much sense as it does to speak of being partly pregnant’.Footnote 50 This point is dealt with in greater detail in the discussion to follow; however, it is worth mentioning here that recognising the truth of Moore’s statement in the context of inculpation agency – that is, one is either responsible for a criminal act or one is not – allows the advancement of the criminal law at the exculpation stage without undermining its legitimacy. It is in the context of inculpation agency that we can understand the avowal of someone being responsible or not as a binary question in the first instance. Once established as an agent at the inculpatory stage, then, we are now in a position to assess moral blameworthiness. Though there may be operational reasons for the divergent approaches to agency at these two sites,Footnote 51 it is their amalgamation such that inculpatory agency is transposed onto the exculpatory stage, which gives rise to the perception that criminal culpability is absolute, when, in fact, it is normative and, therefore, contingent.
Distinguishing inculpation agency from exculpation agency is also integral to the development of a bounded causal theory which applies to the exculpation stage, and to partial excuse, in particular. Towing an ascriptive, decontextualised line at inculpation makes causal theory redundant at this stage because the basic interpretation of cause in this context derives from the individual. At the exculpation stage, however, I argue that causal theory has a more significant role to play in better understanding the relationship between voluntarism and determinism, thus grounding the expansion of partial excuse without undermining the established structures of responsibility.
Three Objections to Causal Theory
The conceptualisation of causal theory as bounded necessitates the confrontation of three major objections to causal theory more generally: the first is that it leads to a universal legal excuse and so undermines the legitimacy of the criminal law; the second is that it cannot be true because otherwise all people subject to the relevant circumstance would commit crime; and the third revolves around the question of evidence regarding the role of circumstance in the defendant’s conduct. This section addresses each in turn.
Universal (Full) Legal Excuse
The core objection to a causal theory of excuse rests on an assumption that it would lead to a form of blanket defence, or ‘universal legal excuse’,Footnote 52 as Michael Moore puts it. For, to say that all acts (including criminal ones) are caused by prior factors beyond the control of the actor is to undermine the basis of holding people responsible for crime, and thus the legitimacy of the criminal law itself. A prominent critic of causal theory, Moore maintains that the theory relies on ‘the assumption that to find a cause for an action is to find an excuse for that action’.Footnote 53 It follows for Moore, then, that the pervading problem with causal theory lies in its relationship with determinism: ‘[i]f one accepts determinism – the doctrine that every event, including human actions and willings, has a cause – then it is hard to see why everyone is not excused for all actions.’Footnote 54 Applying his reasoning to the legal domain, Moore puts the issue as follows: ‘If one accepts the determinist thesis … and if one believes that causation excuses, then one must believe that moral responsibility is an illusion on which liability to criminal punishment cannot be built.’Footnote 55 The incredulity of such a position for Moore is made plain when he says ‘it surely is unpalatable to think that no one should be punished’.Footnote 56 A similar line of reasoning underpins Stephen Morse’s concept of the fundamental psycho-legal error.Footnote 57 Morse argues that causation alone cannot excuse the defendant of their criminal culpability, because if causation can amount to an excuse, then no one is deserving of blame, so the whole basis of retributive justice is undermined. If the law cannot rely on retributive justice as a means of assessing guilt and innocence, it becomes unable to function in its present form. Indeed, Morse’s criticism of the causal approach so framed finds support in the failure of defences like the ‘rotten social background’ / ‘severe environmental deprivation’ defence or the ‘abuse excuse’, and it is also cited as a reason for the failure of the ‘product’ or ‘Durham’ rule as a test for the insanity defence.Footnote 58
Looking closer at the ‘severe environmental deprivation’ / ‘rotten social background’ defence example (RSB, for ease of reference), the idea of including a social cause within the scope of excuse, despite best efforts of many eminent scholars, has, as Lambert puts it, ‘failed utterly to gain any real world traction’.Footnote 59 A central reason for this failure relates to how the basis of the defence is framed in opposition to the dominant capacity-based rationale of criminal responsibility.Footnote 60 For example, Dressler criticises the RSB defence in terms of its causal-excuse nexus when he says that ‘[c]ausation alone … cannot be the basis for excusing for if a person were to be excused whenever his criminal conduct was caused by some factor over which he had not control, all crime would be excusable’.Footnote 61 Morse sums up the official legal response to the RSB proposal when he says: ‘No convincing theory suggests that deprived offenders are less morally responsible simply because they are deprived and therefore deserve excuse or mitigation on that basis alone.’Footnote 62 Lambert notes that those in favour of the RSB defence respond to this overwhelming criticism by saying that the apparent lack of compatibility points to innate problems with the existing, dominant rationale and call for systemic change.Footnote 63 Though such a stance is commendable, the sheer magnitude of the call results in the inadvertent perpetuation of an unjust status quo in this area.
Further evidence of the problem of equating cause with excuse is borne out by the fate of Judge Bazelon’s controversial ‘product’ test for legal insanity. In Durham,Footnote 64 Bazelon sought to replace the existing ‘right-wrong test’Footnote 65 (i.e. the M’Naghten Rules)Footnote 66 supplemented by the irresistible impulse test for criminal insanity in the District of Columbia,Footnote 67 with a test where an individual could bring a successful defence if they could show that their action was ‘the product of mental disease or defect’.Footnote 68 Bazelon’s core issue with the existing test was that it did not provide a full picture of the defendant’s mindset at the time of the crime, resulting in a deficit of relevant information for the jury to make a fair evaluation.Footnote 69 The purpose of the Durham rule, therefore, was to:
reconcile the rule of responsibility with advances in medical knowledge, and to broaden the class of persons who would be treated instead of punished; more particularly, it was framed to facilitate communication between psychiatric experts and the courts which was being impeded by the pre-existing test.Footnote 70
But was it the equating of cause with excuse that brought the demise of the test? Wanting more information to be included in assessments of evaluation amounted to progress in the field of criminal responsibility attribution, but by completely overriding the question of capacity, the test arguably asked too much of the jury at a normative level. Thus, a lack of guidance in the absence of the capacity test, rather than the inclusion of causal theory itself, was central to the failure of the approach in Durham. As Bazelon himself puts it:
[W]e wanted the jury to decide whether the mental abnormality was too serious and the causal connection too direct to impose guilt in criminal cases. Thus, the jury not only would make factual determinations, but also would fix the legal norm against which the mental condition and its relationship to the behaviour must be measured [emphasis added].Footnote 71
Removing the capacity requirement obscured the normative question for the jury to too great a degree, leaving them adrift with nothing to evaluate but the science. Indeed, this played out as a problem between the role of expert and jury, as Bazelon highlights: ‘Conclusory expert testimony on the “productivity” requirement buried these moral questions and precluded their consideration by the jury.’Footnote 72 The test was later abandoned and replaced with the ALI test.Footnote 73 Pondering its demise, Bazelon lamented the fact that the failure of the rule saw those from a disadvantaged background suffer the most,Footnote 74 commenting that his attempt to expand the insanity defence, rather than creating more problems than it solved,Footnote 75 simply ‘uncovered bullets that society has always refused to bite’.Footnote 76
Reflecting on the failure of the product test, I would argue that it was not the inclusion of broader circumstances through a causal framework that led to its downfall, but doing so at the expense of a capacity test as the normative guide for the jury in assessing culpability. Leaving the jury with the task of ‘fixing the legal norm’ as between the mental condition and the action, as opposed to as between the mental condition and the question of capacity, creates anxiety given the potential consequences of a poorly judged acquittal. For, it is laying too much at the feet of a jury to balance the question of moral responsibility with that of community safety.Footnote 77 Consequently, it is arguably the absolutist nature of the product test, as opposed to the inclusion of more relevant information, which holds the greater significance for present purposes.
Indeed, the semblance of absolutism is deeply problematic to the advancement of causal theory in the criminal law. For, how could the law operate upon an interpretation of human behaviour whereby whatever happens ‘occurs regardless of the aims, desires, and intentions of the actors involved, and that what will happen in the future has already been fixed and we are inexorably reeled in by it’.Footnote 78 Such a fatalistic prospect that speaks to deep-seated anxieties cannot hope to gain traction in the law and so it is doomed to failure,Footnote 79 as Kaye posits: ‘[I]f causal theory were correct, this critique maintains, every human act would be excused; since the criminal law does not excuse every human act, causal theory is an overbroad theory of the excuses.’Footnote 80 However, the absolutist thesis, as assumed by scholars such as Moore and Morse, is not the only interpretation of causal theory.
There is a strong argument to suggest that the absolutist critique of causal theory is based on a misunderstanding of one of its core premises, a problem that can be easily resolved – at least at a notional level. According to Kaye, causal theory can explain a number of criminal law defences (e.g. insanity, duress, automatism) on the basis of two claims: first, ‘the criminal law presumes that some human acts are caused by forces beyond the actor’s control’, and second, ‘the criminal law adheres to the “control principle”, the moral principle that actors cannot be blamed for conduct caused by forces beyond their control’.Footnote 81 Those who denounce causal theory do so on the basis of a modification of the former claim, that is, ‘[t]hey replace the proposition that the criminal law presumes causal accounts of certain acts with the proposition that the criminal law presumes causal accounts of all acts’Footnote 82 [emphasis added]. Kaye acknowledges that, on this interpretation, causal theory is indeed overly broad.Footnote 83 Describing the modification as a ‘brazen revision’,Footnote 84 he maintains that the erroneous interpretation of causal theory as universal to all action may be explained by the fact that theorists simply find it unlikely that the criminal law would assert a partially deterministic position, that is, ‘that some, but not all, human acts are caused by forces beyond the actor’s control’.Footnote 85 However, as Kaye notes, because the criminal law can be partially deterministic, the over-broadness criticism is unsupported. Indeed, Kaye argues that a partially deterministic criminal law is plausible through what he terms ‘provisional determinism’,Footnote 86 thus saving causal theory. His account of provisional determinism amounts to the following: ‘[W]hile we acknowledge that acts can be caused, we resist absolute determinism and evaluate causal accounts as they come to us, one by one. Justifiable prudence makes us provisional and thus partial-determinists.’Footnote 87 This insight is supported by Falk, who cites a lack of successful cases in terms of ‘novel’ defences as evidence that ‘recognition of these defenses will not open the floodgates to untold masses of defendants’.Footnote 88
Kaye’s perception of causal theory, then, relies on the fact that the criminal law is partially deterministic. His standpoint pits him against prominent scholars who deem the notion of partial determinism absurd. Let’s return to Moore’s partial pregnancy dilemma for a moment to illustrate the point. Moore opines that ‘to speak of being partly determined or partly free makes as much sense as to speak of being partly pregnant’.Footnote 89 He goes on to clarify, ‘[f]or the degree determinist, it has to be sensible to ask: how much causation was there? The problem is that such a question seems to make no sense at all’.Footnote 90 Moore’s criticism of partial determinism is based on the polarisation of the concepts of freedom/choice and determinism/cause, following Norval Morris’ assurance that there are ‘degree[s] of freedom of choice on a continuum’.Footnote 91 For degree determinists, the issue is to find what Moore calls the ‘baseline premise’ – ‘where on the freedom/causation continuum responsibility ends and excuse begins’.Footnote 92 He says:
[i]f we imagine free action to be at the low end of the continuum and determined action to be at the high end, we must draw a baseline above which actions are so determined that they must be excused and below which actions are so free that they cannot be excused.Footnote 93
Drawing on the inculpation agency and exculpation agency distinction made in the previous section assists in unpicking Moore’s critique. If we consider Moore’s criticism of partial determinism in the context of inculpation, his point makes sense. The voluntary act requirement operates in law by assuming that causation rests in the free action of the accused, as borne out by their rational decision to commit a wrongful act; their rationality is the seat of the cause. The law will either deem the agent a proper subject or it will not; there remains no such thing as a partial agent or, indeed, a partially pregnant person. However, Moore’s criticism does not travel well to the site of exculpation, where a more fine-grained evaluation of the person’s moral and legal responsibility is borne out in terms of assessing whether or not the agent is deserving of an excuse or partial excuse. At that stage, the law has already categorised the person as an agent; they are already in possession of a positive pregnancy status. However, the fact of that status does not preclude us from making an additional and somewhat distinct, yet no less important, enquiry about the nature of that person’s reproductive autonomy. We might ask, for example, to what extent did the circumstances in which the individual became pregnant impair their cognitive, volitional (and/or emotional) capacity to exercise freedom with regards to their own reproductive decision-making? To what extent, then, did the circumstances of a defendant (with inculpatory agent status) impact their capacity to control their impulses and/or to reason in relation to the commission of the criminal act?
Kaye further attacks arguments against the plausibility of a partially deterministic criminal law by saying that the critics overstate the case against the notion of ‘agent causation’, such that individuals are the source of causes, claiming that the problem is one of a lack of understanding about how actions and events can cause other events in a general sense, rather than a failing of agent-causal theory in particular. On this reading, no one has the answer, and thus, for Kaye, ‘the claim that partial determinism is so philosophically implausible that the criminal law could not possibly embrace it is itself implausible’.Footnote 94 This argument is supported by the framing of law as a practical instrument. Drawing on a more pragmatic view of the structure and agency dilemma from a sociological perspective, we might agree with Pleasants that the concept of determinism does not necessarily entail fatalism: ‘[T]o say of an event Y that it was determined by X is just to say that it was caused by X, or that X featured prominently in its causation.’Footnote 95 Barzun also views the law’s position through a more practical, and therefore partially deterministic, lens when he acknowledges:
Philosophers debate whether all human conduct is determined or not, but when faced with a particular case, under a causal theory of excuse, the judge or jury must decide whether, in this particular case, the defense has adequately shown that the defendant was not the cause of his behaviour.Footnote 96
In this sense, determinism is not fatal to the law, as the voluntary act requirement has already established that the defendant featured in the cause of the outcome. It is in considering the applicability of an excuse, then, that the law recognises the other causes that may have featured in the harmful outcome, which may be assessed in terms of the extent to which they overrode the agent’s free choice as a cause. Accordingly, on this view, we do not need, nor are we likely ever, to solve the metaphysical conundrum of free will versus determinism in order to bring about a more socially progressive criminal law.
Kaye’s second point against the arguments touting the implausibility of partial determinism is from a common sense or folk psychology perspective; the idea that whether or not philosophers agree with it, most of us go about our daily lives ‘in accord with the assumption that metaphysically free human action is possible’.Footnote 97 Kaye claims the critics’ case is overstated but that they are right to point out dangers and uncertainties with absolute determinism, and that it is in light of such dangers that the law is partial, and not absolute. He summarises the anxieties thus:
Absolute determinism threatens our sense of control, our stature in the universe, and even the existence of our self; causal thinking has the potential to degrade our social lives by devaluing others for us and taking away our reactive attitudes, and to corrupt our political culture by leading us into paternalism and totalitarianism; individual causal accounts are daunting to us, both because the specter of absolute determinism looms behind them, and because their unavoidable incompleteness requires us to make a leap of faith if we are to believe them.Footnote 98
In light of these fears, Kaye claims that it is entirely plausible that the criminal law is provisionally, and therefore partially, deterministic, in that ‘we take a cautious approach to causal accounts of human acts – that we take them one by one, that we judge them account by account, that we avoid unnecessary generalization’. On this basis, the over-broadness critique of causal theory is inaccurate: ‘[i]t fails to see that while there may appear to be a slippery slope from particular causal explanations to absolute determinism, we have strong motives to dig in our heels and resist sliding down that slope.’Footnote 99
The fear of the universal (full) legal excuse is therefore countered by an understanding of causal theory as particularised as opposed to generalised. With a narrow reading of agency ascribed at the point of inculpation, we are safe to explore evaluations of blameworthiness upon a scale that looks at cause pertaining to the individual at one end, and cause pertaining to prior circumstance at the other. It is in this space that other causes, deemed not relevant at the point of inculpation, should be considered with a view to evaluating the exculpatory status of a particular defendant, and realising a more authentic account of personhood at blame attribution, as promulgated by the RPA.
The second major complaint against causal theory relates to the preceding debate as between the general and particular but warrants elucidation in its own right.
If a Particular Circumstance Causes Crime, Why Doesn’t Every Individual Subject to that Circumstance Offend?
This argument asserts that we cannot include a particular circumstance, for example, poverty, as a condition of criminal excuse because it does not affect universally, or uniformly, all those who are subject to it. It is a potent objection, of course, because there is truth in it: most people who are living below the poverty line do not engage in criminal conduct.Footnote 100 Yet how do we reconcile this information with the fact that the majority of those involved with the criminal justice system have experienced some form of social deprivation? Paul Robinson resolves the tension by framing the dilemma in terms of the distinction between a correlate and a cause in arguing against the expansion of excuse doctrine.Footnote 101 In the context of a discussion of the RSB defence, he opines: ‘[t]here may be a general correlation between RSB and crime, but a general correlation does not make specific causation.’Footnote 102 He reinforces his argument by equating an RSB excuse to a defence of maleness in light of the fact that the majority of those in prison are men, asking, ‘if we are not prepared to give a defense for “being male,” why would we consider giving an excuse for having an RSB?’Footnote 103 Morse echoes Robinson’s reasoning on the rejection of an expanded excuse doctrine by focusing on the need for something more concrete than a correlation as the basis.Footnote 104 Thus, for Robinson and Morse, it would follow that unless and until the science advances to such a degree as to categorically prove causation in these instances, then the law cannot support the expansion of excuse doctrine to include a poverty defence or, indeed, a maleness defence.
It is possible to overcome this objection, however, on the basis of the overly generalistic nature of the argument, and its failure to account for an integral aspect of criminal responsibility attribution – the individualised evaluation of the defendant’s moral blameworthiness. The point may be demonstrated by considering mental disorder as a basis for an excuse. At present, the law is prepared to give a defence on the grounds of a diagnosis of mental disorder under the insanity defence. However, it does not follow that all those with such a diagnosis are afforded an excuse, as starkly evidenced by the number of people in prison with a diagnosed mental condition.Footnote 105 So, while those who offend have a higher rate of mental disorder than the general population, it does not, of course, follow that all those with a mental disorder offend. Indeed, much work has been done in recent years to counter the conflation of mental illness with criminality.Footnote 106 Yet an insanity defence exists and operates (albeit rarely) in the criminal law. For, under the law, once evidence of the grounds for the excuse (mental disorder) is established (usually with the assistance of expert opinion), the next step is for a jury/judge to evaluate whether or not the effect of that condition on the particular defendant is sufficient to override their moral blameworthiness for the offence under a capacity test, as the excusing condition. Similarly, we might say that though the law does not recognise a maleness defence, notwithstanding a correlation between ownership of a Y chromosome and propensity for criminal conduct,Footnote 107 that is not to say that a person’s sex is ruled out in an assessment of their culpability for the purposes of exculpation. For example, a subjective reading of the defence of provocation requires the jury to consider the sex, and other relevant features, of the defendant in the evaluation of their culpability for the crime, and the way in which different sexes respond to certain circumstances and stimuli is increasingly recognised as integral to a fair assessment of their moral blameworthiness.Footnote 108
So Morse is right in that the presence of a particular condition ‘alone’ is not sufficient in itself to bring about a defence. Indeed, the word ‘alone’ indicates that the factor can be included in an assessment but that other factors must also be taken into account in the evaluation of culpability. In particular, those other factors involve an assessment of whether and to what extent, the condition in question impaired the person’s volitional and/or cognitive capacity, emphasising the role of impact on capacity as the excusing condition, rather than the basis of the defence itself. Further, while Robinson too is correct in identifying a certain level of scepticism about the influence of environment over an individual’s capacity to form their own beliefs and values,Footnote 109 such scepticism is uninformed by the degree to which environment can influence disposition,Footnote 110 and the degree to which certain individuals are more susceptible to influence than others . For example, Falk frames this particular objection to expanding the scope of excuses as a policy issue she terms ‘differential impact’, whereby only some individuals exposed to ‘social toxins’ are so adversely affected by them, that criminal conduct ensues as a result.Footnote 111 Falk references studies that explain differential impact, in this context, which support the claim that some individuals are more susceptible to the impact of a particular adverse situation than others to a degree that reinforces criminal conduct;Footnote 112 relevant factors amounting to their level of exposure and their personal characteristics in terms of responsiveness.Footnote 113
Thus, it may be argued that the objection that excuse may not include social circumstances like poverty because not all poor people commit crime is overly simplistic because it does not account for the need for individualised assessments of blameworthiness in criminal responsibility attribution practices. Therefore, while there may be high rates of poverty, trauma, mental disorder, or even maleness in those who offend, this link is rightly insufficient to constitute a full or partial excuse. Rather, it is the effect of such a condition or circumstance on the capacity of a particular person that is central to a thorough evaluation of blameworthiness. Such an assessment requires as much information as possible in order for the jury/judge to be adequately equipped when determining a defendant’s blameworthiness, however, and so the question of evidence is integral.
The Evidential Issue
Another obstacle to the inclusion of circumstance in the context of exculpation is the question of proof. How can a defendant show that their particular context so impacted their capacity that they ought to be afforded an excuse? For, a defendant wishing to bring an excuse in the criminal law can only ever achieve a successful outcome if they have sufficient evidence to support their claim, and so, the rules of evidence provide us with a robust means of ensuring that a defendant would not simply ‘get away with it’. As discussed in more detail in Chapter 6, in the context of the partial excuse of diminished responsibility, it is the role of the expert witness to proffer evidence of the accused’s condition in order to inform the ultimate decision of the judge/jury. Considering the question of evidence in the context of an expanded partial excuse, and taking the example of a circumstance like deprivation, it is arguable that an expert can feasibly attest to a defendant’s level of poverty through the use of a deprivation index.Footnote 114 Further, many studies support the negative impact of deprivation on the ability of an individual to control their impulses.Footnote 115 The point is, however, that such evidence would need to take the additional step and attest to the impact of deprivation on the impulse control (for example) of the particular defendant and in relation to the commission of the criminal act in question. It is then for the jury or judge to decide on the basis of all relevant evidence, the degree to which the defendant is deserving of a partial excuse. As Falk notes, ‘In the final analysis … can an individual defendant amass sufficient evidence that a particular social toxin affected his conduct to an extent not experienced by others?’Footnote 116 So, while it is plausible that relevant evidence could be provided by a suitable expert as to the effect of a circumstance on the accused, at the heart of the concern remains the need to establish clarity around the classification of the defendant as different somehow, and therefore deserving of leniency. This is not a novel issue, of course, because the law is already concerned with seeking to portray defendants relying on a mental disorder defence as ‘abnormal’ in some way, so as not to upset the business of blame.Footnote 117
At present, then, how is it possible to adequately assess whether someone is sufficiently different to warrant an excuse or partial excuse? Morse, for one, would assert that it is not possible. For Morse, ‘[h]arder and easier choices are arranged along a continuum of choice: there is no scientifically dictated cutting point where legal and moral responsibility begins or ends.’Footnote 118 In other words, there remains no conclusive way to tell whether the accused was incapable of making the decision not to offend, or whether he was capable of making such a decision, but simply made the wrong one. This fundamental difficulty remains the case whether you employ a capacity or character account of excuse. In the context of capacity, for example, an unresolved doubt exposed by this rationale concerns the point at which a person’s capacity or opportunity to conform is sufficiently compromised to render attribution of blame and punishment inappropriate. In Wilson’s view, for instance, if the capacity theory of criminal responsibility is to be at all plausible, it must somehow separate those determinants of our choices which are fairly treated as part of the actor’s authentic choice-making resources and so reflect badly on them, from those which are not and so do not reflect badly on them.Footnote 119
Similarly, assessments of volitional capacity run into difficulty in terms of the cogency of evidence supporting such claims, yet the notion of volitional capacity functions relatively effectively, though not without controversy, in the criminal law.Footnote 120 For example, in England and Wales, the notion of volitional capacity found its way as a basis of a diminished responsibility defence following the decision in Byrne.Footnote 121 Section 52 of the 2009 Act incorporates the Byrne criteria into the legislative definition of the law, which is a sensible move, and certainly a clarification of what is required by the notion of ‘mental responsibility’. The primary issue with the Byrne criteria which section 52 fails to clarify, however, is the ‘irresistible impulse’ element, in that the difficulties and uncertainties which deterred judges from allowing the irresistible impulse defence under the M’Naghten Rules in the first place, still remain.Footnote 122 In this regard, Lord Parker C. J.’s opinion on the issue expressed well over sixty years ago is as pertinent now as it was then:
[T]he step between ‘he did not resist his impulse’ and ‘he could not resist his impulse’ is … one which is incapable of scientific proof … there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses.Footnote 123
If it is still not possible to establish with certainty the link between impeded capacity and a given criminal act, then how does the law operate in terms of evaluating mental disorder defences at present? In the context of irresistible impulse claims, Williams suggests that the courts get past the difficulty of proof by taking a ‘laissez-faire’ attitude to expert opinion;Footnote 124 this attitude is arguably enduring,Footnote 125 and is supported by the analysis in Chapter 6. Notwithstanding the weight of the evidence dilemma, then, the criminal law, in its present form, sustains a functioning system of responsibility and excuse by relying on the normative decision-making capabilities of judge/jury as informed by expert testimony. In doing so, the courts demonstrate an ability to tolerate the discomfort of not knowing for certain the true substance of a person’s mind at a certain point in time and making a decision on the basis of the information before it, notwithstanding. This point is discussed in more detail in the context of the UPD in Chapter 8.
Taken together, the discussion relating to the three core objections to causal theory shows that they are, in fact, conceptually surmountable for the reasons discussed, therefore lending promise to the notion of a bounded causal theory as a rationale for partial excuse and the proposed UPD.
Bounded Causal Theory and the UPD
Causal theory is the language of circumstance in the criminal law and so must be reclaimed in order to legitimise the expansion of the doctrine of partial excuse under the UPD. The theory has been disparaged out of fear of the introduction of absolute determinism in the form of a universal legal excuse which has the potential to undermine the entire criminal law enterprise through the denigration of personal responsibility. Further, its feasibility has been doubted on the basis that not all people who share similar problematic circumstances go on to offend, and it has also met with evidential objections. An enduring reluctance to engage with causal theory, however, means that it has never had adequate opportunity to evolve, arguably resulting in the perpetual stagnation of the advancement of justice in the realm of criminal excuse. Drawing on Kaye’s work, the previous section addresses the core criticisms of causal theory and carves out the foundation of a bounded causal approach which allows for the consideration of circumstance at the point of exculpation without giving way to absolute determinism.
Bounded by place, the causal explanation is confined to partial excuse alone. Relying on a real-world philosophy approach, the first section of this chapter demonstrated how a causal theory supplement provides a more adequate explanation of the partial defence of diminished responsibility as it stands, reflecting more closely the reality of the court’s flexible interpretation of the defence. Considering the application of causal theory through the UPD, a causal lens is integral to accommodating more cohesive explanations for harms that are categorised by an understanding of personhood in relational terms, and without excluding the person as a cause in their own right. In other words, causal theory recognises that some causes can arise from an individual’s rational choice (inculpating them to the criminal law), for example, but it can also recognise that prior circumstances outside of that person can be categorised as significant causes of the outcome also (matters for consideration at exculpation). Further, by supplementing and not supplanting the existing capacity approach as the excusing condition, then, these causes may be filtered through the individual when they are framed as impinging on their (cognitive, volitional, and/or emotional) capacities to such a degree that they should not be held fully responsible. Thus, causal theory attends to the agent in context, supporting a Real Person Approach to blame attribution. Binding causal theory to partial excuse also solves a number of issues underlying the threat of absolutism. In particular, the fact that a successful partial defence is not a complete defence means that the defendant is still held criminally culpable for their act, though in a more precise manner. This frame means that the threat of an exculpatory free-for-all is avoided, and fears regarding the risk of defendants ‘walking free’ are addressed.
Bounded by its nature, causal theory is characterised as a partially deterministic practice, in that explanatory circumstances are considered in the particular context of the defendant’s moral evaluation, as opposed to applying as a general status by which to identify a class of people. This approach meets the universality requirements of the UPD discussed in Chapter 5, and it facilitates a deeper engagement with the defendant’s circumstances by allowing more information to be considered by the decision-maker, but in a ‘safe’ way. In line with the dominant individualised justice paradigm, and the rigours of criminal legal practice, evidence of circumstance must always be considered in the context of its impact on the defendant’s mental functioning under scrutiny before the court. Thus, even if the defendant is proven to have a background involving severe deprivation, abuse, trauma, or addiction, for example, what matters is how those circumstances bear on the person in question, and in the context of the offence, having regard to their own degree of exposure to such circumstances, and their own personal responsiveness to external influences.
Conclusion
A historically reductive account of the relationship between determinism, causal theory, and excuse has overshadowed a deeper engagement with how scientific advancement is applicable to issues of culpability. The effect has been to deprive the community of a criminal law imbedded in the principles of social justice, and the defendant of a more morally precise culpability evaluation. As Barzun puts it:
[t]o dismiss such evidence and argument as external to law, and thus of no concern to judges and lawyers, therefore amounts to short circuiting precisely the debate about the nature of moral responsibility – and hence criminal culpability – that citizens, courts, and policymakers ought to be having.Footnote 126
This chapter has demonstrated that building on the present law relating to partial excuse is a means of using existing ‘materials of the practice’ in a way that advances justice at the site of criminal excuse.Footnote 127 Chapter 8 examines in detail how such materials are adapted for the purposes of the UPD.
