Introduction
The Real Person Approach (RPA) has been offered as a conceptual tool to bring a social justice consciousness to culpability evaluation through the recognition of agency as vulnerable, but in a way that works with the core tenets of the criminal law, the principles of proportionality and parsimony. The doctrine of partial excuse was identified as a discrete site with the potential to actualise the RPA owing to its facility for a more fine-grained analysis of desert. A case for the universality of the doctrine was made to acknowledge that all those who offend are entitled to greater recognition of their situated personhood; and the defence of diminished responsibility was explored as a suitable progenitor to a Universal Partial Defence (UPD). Key conceptual challenges facing the recognition of a causal understanding of crime having a role to play in determinations of culpability were tackled through the development of a bounded causal theory of partial excuse. This approach facilitates situational context as a rationale for excuse, while reinforcing the normative capacity of the individual in determinations of blameworthiness. As the culmination of this foundational work, the aim of this chapter is to present a doctrinal blueprint for the UPD based on an expanded version of the diminished responsibility defence, and to consider the practical challenges confronting the proposal. The remainder of this section will address some preliminary points of note.
The UPD is located at the pre-verdict stage, as opposed to the sentencing stage, so that it operates as a form of ‘partial affirmative defence’.Footnote 1 Part II of the book has already discussed the significance of the defence operating at this site in terms of the moral imperative of recognising proportionality in determinations of blameworthiness, and exercising parsimony through doctrine to offset the proliferation of conceptual punitiveness in criminal law and justice responses. Robinson, too, recognises the import of acknowledging reduced culpability at this site, in the following terms: ‘Adopting a codified general mitigation provision can provide blameworthiness proportionality more consistently, accurately, democratically, and transparently than leaving the mitigation to the unguided exercise of discretion by individual sentencing judges.’Footnote 2 Positioning the defence at the site of culpability evaluation also underpins the argument that doctrine is a category of public law and so must adhere to the state’s duty to protect its subjects. This point is integral to the theoretical inquiry of this book in advancing discourses that champion the recognition of social justice ideals at the centre of the criminal law, as captured by the RPA. Finally, it is recommended that the UPD is set out in statute for reasons of clarity and consistency of application.Footnote 3
To emphasise and facilitate normative decision-making, the doctrinal structure reflects core features of the existing diminished responsibility template, as discussed in Chapter 6. In particular, it includes provision for the basis of an excuse, a form of impaired capacity as an excusing condition, and the requirement of a causal link between the two, in order to bring a successful defence. Moreover, the language recommended to evaluate the core normative issue largely traces existing principle and so draws on a recognisable lexicon for juries, who are already familiar with making more coarse moral assessments of terms like ‘reasonableness’ and ‘substantial’, and so on. Thus, the UPD is designed to ‘frame moral questions in ways that the law can address using its existing epistemic techniques and standards’,Footnote 4 for the most part.
A Blueprint for the UPD
With the aforementioned factors in mind, it is recommended that a blueprint for the UPD include the following requirements.
D is entitled to a partial defence where:
1. at the time of the commission of the offence, D’s mental functioning is substantially impaired, and
2. the impairment arises from a condition or circumstance (commensurate with or prior to the offence),
3. such that the jury find it morally appropriate to recognise D’s reduced level of responsibility for the offence. [In determining what is ‘morally appropriate’, the jury should have regard to whether their reason(s) for permitting the defence (and not the wrongfulness of the offence itself) undermines community values.]Footnote 5
The remainder of the section explores the proposed criteria in more detail.
Substantial Impairment of D’s Mental Functioning
The term ‘substantial impairment’ directs the jury to consider how, and the extent to which, the condition or circumstance undermined the defendant’s mental functioning at the time they committed the offence. The phrase is relatively uncontroversial because the notion of ‘substantial impairment’ already exists within the definition of diminished responsibility in England and Wales and Northern Ireland.Footnote 6 The present interpretation of the term was discussed in detail in Chapter 6, demonstrating how it has been largely imbued with a common-sense meaning that is left to the jury to decide upon on a case-by-case basis.Footnote 7 As it stands, the notion of ‘substantial’ is purposefully vague, allowing for an interpretation of the impairment amounting to something more than trivial.Footnote 8 It is recommended that this approach to understanding the term is maintained (notwithstanding the perceived medicalisation of the term in the case of Golds, which sought to narrow the interpretation by appearing to endorse the need for medical opinion on the question of substantial impairment).Footnote 9 Moreover, as the basis of the UPD is not confined to mental disorder as the sole root of the impairment, deciding upon the presence of a substantial impairment remains a question firmly within the remit and ability of the jury, though their inquiry may be supported by expert evidence, as explored later in the chapter.Footnote 10
As discussed in Chapter 6, the term ‘abnormality of mental functioning’ is already incorporated into the definition of diminished responsibility adopted by Northern Ireland, and England and Wales.Footnote 11 While the UPD would retain the term ‘mental functioning’, for reasons explained in a moment, it would exclude the term ‘abnormality’, in order to avoid derogatory labelling that can contribute to the dehumanisation and stigmatisation of those who might avail of the defence.Footnote 12 Avoiding this terminology is a means of recognising and responding to the pathogenic vulnerability experienced by someone who might be subject to this doctrine.
Chapter 6 discusses in more detail how mental functioning under the 2009 Act relates to three specified abilities: the capacity to understand, to judge, and to control actions.Footnote 13 Such capacities remain under the purview of the common law and are not generally given a psychiatric meaning.Footnote 14 The analysis in that chapter shows how each listed capacity is understood ultimately as a normative question. The UPD would continue to endorse this overall approach, which chimes with the view of Morse, for instance, in his discussion of relevant capacities:
A decision concerning the capacity for normative competence is a commonsense judgment that requires a normative interpretation in response to shifting morals and politics. The imprecision in the definition of the capacity is, paradoxically, a virtue because it gives proper latitude for such interpretation.Footnote 15
The advantage of fore-fronting the capacity of the person ensures that the dominant approach to excuse-making is given a prominent place. This matters to the RPA because it recognises the benefit of maintaining a space for an approach deriving from the rational agency paradigm but qualified by the need to recognise vulnerability of personhood too. This compromise is achieved through facilitating consideration of a wider array of conditions and socio-structural circumstances that impact behaviour, and as recognised in excuse theory through a causal account, as outlined in more detail in Chapter 7.
Accordingly, a more fulsome understanding of mental functioning is needed in terms of reflecting as closely as is feasible the experience of real people as both inherently and situationally vulnerable, in line with the RPA.Footnote 16 As such, for the UPD, ‘mental functioning’ would be read as going beyond its present confines of cognitive and volitional capacity, to include impairment of emotional competence also.Footnote 17 The benefit of including emotional capacity as part of the excusing condition is that it guards against punitive excess by focusing on the moral reaction of the person who has offended, which can lead to character-based assumptions that lend themselves to moral essentialism. In particular, allowing consideration of emotional capacity permits a different view of people who have a negative attitude to authority and/or the victim of the crime. Traditionally, such a display represents a lack of remorse, which can amount to an aggravating factor at sentencing, with little regard to whether such a response derives from a circumstance like trauma, for instance.Footnote 18 So, while an individual might present as largely responsive to reasons, there may exist other circumstances that have impeded their autonomous decision-making in a way that warrants recognition in determinations of blameworthiness.Footnote 19
A final point of clarification relates to whether or not a mental state like duress can give rise to the partial defence. Though it is perhaps not the core target of the UPD, nonetheless, this part of the excusing condition can be accommodated in the proposed blueprint via the broad understanding of mental functioning adopted. Duress, of course, traditionally targets external factors that bear on an individual’s autonomy to choose freely how to act. Thus, it can either be framed in the context of situational control (external),Footnote 20 or as under the normative competence wing (internal).Footnote 21 A duress-type defence can come through the mental functioning filter of the UPD when we recognise mental functioning as inherently contextual. This can be achieved by understanding emotion as a relevant capacity here, in addition to cognition and volition, and moreover by recognising that such capacities can be more or less responsive to external circumstance, depending on the particular competencies of the individual, and the nature of the situation.Footnote 22 And so, duress or compulsion can bear on an individual in terms of manifesting as a form of emotional distress that limits their decision-making capacity.Footnote 23 Thus, a balance can be achieved between the consideration of situational context and how it impacts a person’s mental functioning.
In summary, for the UPD, the need to show substantial impairment of mental functioning tracks, albeit generously, the dominant capacity-based explanation of excuses by retaining the capacity principle as the moral filter. This represents the ‘bounded’ aspect of the ‘bounded causal theory’ developed in Chapter 7, as it upholds the tenets of the traditional conception of rational agency but supplements it with a broader understanding of what agency entails, in a way that more closely aligns with real personhood. But what of the causal aspect?
The Impairment Arises from a Condition or Circumstance (Commensurate with or Prior to the Offence)
This element encapsulates the root of the excusing condition. At present, the partial defence of diminished responsibility is based on the defendant having: a ‘recognised medical condition’ (England and Wales, and Northern Ireland), a ‘mental disorder’ (Ireland) and, in Scotland, the more abstract concept of ‘abnormality of mind’.Footnote 24 It is envisaged that the chosen wording would facilitate the ongoing inclusion of conditions that are presently accepted to reduce murder to manslaughter or culpable homicide (Scotland), but across all offence categories, and with the exclusion of stigmatising terminology like ‘abnormality’. Keeping the term non-prescriptive removes the need to create new categories of excuse for novel diagnoses that might facilitate a potential basis for an excusing condition, avoiding an arguably untenable position. Moreover, the broader phrasing ensures that those conditions that might be described as straddling the condition/circumstance divide, conditions (discussed in Chapter 6) like addiction, trauma, and developmental immaturity, are clearly accommodated within the UPD, which accords with the flexible approach afforded to these categories in practice.Footnote 25
To reflect the dynamic nature of agency as mandated by the RPA, the UPD is designed to apply to an immediate context, but also to more enduring prior factors such as particular life experience, familial circumstances, and cultural contexts.Footnote 26 Situations like severe environmental deprivation are accommodated, in particular, and would work in the way envisaged by Lambert’s scarcity defence whereby evidence of deprivation may be accepted provided evidence is also presented in relation to impaired mental functioning.Footnote 27 The remainder of this section focuses on two more controversial scenarios that might come within the UPD: circumstances that may give rise to a ‘cultural defence’ (or partial defence, in this instance), in addition to those that might give rise to loss of control/provocation.
Cultural Contexts
It is relatively uncontroversial to say that culture impacts behaviour and questions of autonomy, a process that is captured by Ortner when she says:
[C]ultural schemas may become deeply embedded in actors’ identities as a result of actors’ growing up within a particular cultural milieu, and as a result of practices (social, ritual, etc.) that repeatedly nourish the schema and its place within the self.Footnote 28
Of course, there are many ways to include cultural factors in assessments of criminal responsibility more broadly, for instance, at the prosecutorial decision-making stage, and in relation to establishing the offence, full defence, or in mitigation of sentence.Footnote 29 And though there have been intermittent calls for a ‘cultural defence’ at the exculpation stage over the years, no jurisdiction has given formal recognition to one as yet.Footnote 30
Issues relating to culture and criminal responsibility are particularly pertinent because the RPA mandates that social context ought to be considered in determinations of culpability. As discussed in Chapter 2, responsibility doctrine is contingent and at present encapsulates a particular sociocultural vision of personhood dominated by a narrow view of rational agency. So, it is not devoid of culture, but nor is it for that matter, ‘transculturally valid’.Footnote 31 Parekh, for instance, argues that recognition of cultural diversity must be accommodated in the criminal law: ‘[T]he cultural structure or identity that the liberal society cherishes requires it to accommodate legitimate cultural differences, and not to press the “when in Rome” argument beyond a point where it becomes offensive and demeaning.’Footnote 32 The idea of a cultural defence tends to be eschewed for reasons pertaining to determinism, and the fear that people might succeed in avoiding criminal liability in situations where they claim ‘my culture made me do it’.Footnote 33 Such fears relating to the abdication of responsibility are causal in nature, and the bounded causal approach, as developed in Chapter 7, allows for the consideration of circumstance in a way that does not undermine the liberal ideal. As such, it is possible for the UPD to consider cultural factors as circumstances (causal); however, to be successful, a defendant would have to evidence that such factors impeded substantially mental functioning (capacity). A further limit on the causal approach here is that even if an aspect of mental functioning has been shown to be so impaired, the defendant would still have to convince a jury that it was morally appropriate to grant a partial defence. Thus, the UPD recognises a more nuanced position whereby an invocation of culture may be entertained as a potential partial excuse, but not all such invocations will be successful.
The mental functioning requirement, in particular, is prohibitive of bringing such evidence at exculpation. As, for the most part, those who might rely on a cultural explanation for their actions will not have a related impairment. Rather, it is more accurate to think of a cultural defence as a claim that the individual is bound by the particular beliefs and practices of their cultural community.Footnote 34 Thus, as Levine suggests, by and large cultural factors are best dealt with in the context of establishing mens rea. We might imagine a scenario where an individual commits an act, where that act aligns with their cultural values, but is at odds with the law. Levine gives the example of a parent engaging in what might appear to be abusive behaviour – the Vietnamese practice of ‘coining’ that involves massaging the body with a serrated coin as a cure for certain illnesses which can leave scars.Footnote 35 Here, the question of culture would go to disavowing intention where the defendant can show that their objective was to heal their child, for instance, and not to harm them. In this scenario, the UPD would not apply, as the defendant would be unlikely to establish a substantial impairment of mental functioning, because they are simply abiding by community practices and values.
However, the issue could come into play at the exculpation stage where a defendant brings a cultural defence as a means of explaining an action that is unequivocally harmful and they seek a justification or an excuse on that basis. In other words, the defendant is asking the court to ‘tolerate’ unlawful behaviour for cultural reasons.Footnote 36 For instance, we can imagine cases that involve familial abuse where a defendant commits an unlawful act but claims an excuse on the basis that the behaviour is seen as an appropriate or tolerable response in their particular culture.Footnote 37 The US case of People v. ChenFootnote 38 is often cited as an example where a defendant made a successful claim of cultural tolerance to secure a reduction. In Chen, the defendant relied on evidence of the shame of infidelity in Chinese culture, in addition to a lack of intervention from a social network that would have occurred had the circumstances arose in China, to reduce his conviction from murder to second-degree manslaughter, with a non-custodial sentence. However, it is important to note that the Chen case was a judge-only trial and is not representative of how juries tend to respond in cases with a domestic abuse context, and so is an exception rather than the norm.Footnote 39 Thus, as well as being unlikely to meet the requirements of part (1) of the UPD, the normative component built into part (3) of the blueprint, and discussed later, would add an additional safeguard to preventing this type of case from succeeding.
That said, the UPD does provide a space where cultural circumstances can be taken into account formally and recognised as potentially reducing culpability where there is sufficient evidence to support a claim that such circumstances are an aspect of the person’s culture, that the person’s mental functioning was substantially impaired as a result (e.g. experiencing overwhelming stress as a result of cultural demand or expectation), and that the jury are satisfied that it is morally appropriate to allow the partial defence, having regard to whether their reasons for doing so undermines community values.
The Chen case also highlights the overlap between some forms of purported cultural defence and more gendered considerations and responses that are familiar to the existing partial defence of provocation/loss of control, and it is to this issue we now turn.
Loss of Control/Provocation/EMED
As outlined in Chapter 5, the second main partial excuse to murder comes under the guise of loss of control (England and Wales and Northern Ireland), provocation (Ireland and Scotland), or extreme (mental or) emotional disturbance (EMED/EED) (Model Penal Code).Footnote 40 This family of defences is similarly confined to homicide cases and serves as a strong example of how doctrine is embedded in its time and place, as a product of ‘historical tradition, political compromise and changing cultural norms’, lending itself to more than one underlying rationale.Footnote 41 As such, its categorisation as a partial excuse or partial justification has been a cause of contention, largely in a theoretical context.Footnote 42 Indeed, there is a depth and breadth of literature on the provocation defence to which I cannot do justice here.Footnote 43 Rather, the primary task of this section is to show how a version of the provocation defence can be incorporated within the UPD, but to signal that this is a site where further work needs to be done to tease out the merits of doing so, particularly in the context of domestic abuse cases. There are two potential directions for relating the defence to the UPD. If we perceive provocation as aligning more closely with a justificatory rationale, and deem it more appropriate for it to be dealt with as a distinct defence, it may well be that it is excluded from the UPD on policy grounds. However, if the defence is given an excusatory rationale, it can be understood in a way that sits more comfortably within the remit of the proposal. To this end, we will consider two versions of the defence currently in operation to get a sense of how it can be adopted within the UPD.
The definition of loss of control under the Coroners and Justice Act 2009 is one of the more complex versions of the defence and emphasises the need for some form of provocative conduct by another. Section 54 deems the killing less wrongful where a ‘loss of self-control’Footnote 44 arises from a ‘qualifying trigger’, which is defined to include two scenarios. The first scenario is where the defendant had a fear of serious violence (from the victim or another),Footnote 45 and the second is where something was said or done constituting ‘circumstances of an extremely grave character’ and caused the defendant to have ‘a justifiable sense of being seriously wronged’.Footnote 46 The defence will not apply where either scenario arises as a result of the defendant inciting the victim or another to act in the relevant way, as an excuse to use violence.Footnote 47 Moreover, sexual infidelity is explicitly excluded from forming the basis of a qualifying trigger.Footnote 48 The loss of self-control element has subjective and objective dimensions in considering the defendant’s response to the qualifying trigger. While their sex and age may be considered, the provision makes clear that the defence targets ‘normal’ reactions, and so does not have a medical basis and, explicitly, does not include factors that ‘bear on D’s general capacity for tolerance or self-restraint’.Footnote 49 This version of the defence contains highly specific exclusions that are not envisaged for the UPD blueprint presented here, for reasons pertaining to flexibility and jury decision-making (as discussed later), though that is not to say that they cannot be added to future versions. Alternatively, there may be policy reasons and jurisdictional preferences for keeping this defence distinct.
There are, of course, more minimalistic definitions of this defence, like the EMED, which is closest to an excuse rationale, and versions of which form the basis of proposals for introducing a generic partial defence.Footnote 50 EMED provides a partial excuse where the defendant is under ‘extreme mental or emotional disturbance for which there is reasonable explanation or excuse’.Footnote 51 The section is heavily subjective in nature as evidenced by the subsequent part: ‘The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.’ Morse favours this version because it focuses on the normative excusing condition, is written in plain terms, and is not linked to a particular underlying root cause.Footnote 52 Unlike the loss of control and provocation definitions, it is also less tied to the provocative conduct of another, bringing it closer to an excuse than a justification, though it has a justificatory element in the requirement for a ‘reasonable explanation or excuse’. A version of the defence operates in eleven US states, three of which have omitted the ‘mental’ aspect to allow EED to be distinct from mental impairment.Footnote 53 And though definitions vary, the crux of the EMED defence is that it does not demand a mental disorder to be present, but rather requires a major impairment of volitional control to have occurred in response to a significant stressful event, such that the individual is deemed less culpable.Footnote 54
These two approaches reflect divergent models of exculpation. The motivation behind the MPC’s definition is arguably more utilitarian in nature and assumes that the individual who could avail of the defence is unlikely to be deterrable. As such, it is more of a ‘concession to human weakness’,Footnote 55 and arguably a generous one at that.Footnote 56 However, recent studies demonstrate that it has not had a significant impact on states in practice,Footnote 57 suggesting its generosity is more of an assumption than a reality. For instance, Bergelson argues that the reason for the reluctance to allow the defence relates to the fact that ‘the defence of EMED is in conflict with important values and principles governing Anglo American criminal jurisprudence’.Footnote 58 In other words, it may be perceived as too lenient. Loss of control, on the other hand, leans more heavily on a justificatory rationale, which is not without controversy either. For instance, as Bergelson notes, relating the justification to the sense of being seriously wronged is essentially to say that it is the justification itself that provides an excuse, which is a counter-intuitive outcome if we accept that the two rationales are to be understood as distinct.Footnote 59 Notwithstanding the criticism, it is argued here that loss of control/provocation as a partial defence is best conceptualised as an excuse because this interpretation is most suited to a modern democratic state that relies on an authentic account of personhood in determinations of responsibility, as promulgated by the RPA, and does not countenance the potential for victim blaming.
There is much support in the literature for an excusatory account of the defence.Footnote 60 One of the more prominent arguments in favour of this position relates to the fact that viewing the defence as an excuse shifts the focus from the victim (who can be perceived as the provoker) to the defendant’s reaction to an extreme situation. This matters because viewing the victim as being in some way responsible for their own demise no longer seems culturally appropriate. In this vein, Horder explains how the early provocation defence was based on loss of honour as a result of wrongdoing on the part of the victim that indicated a profound lack of respect towards the defendant.Footnote 61 At the time the defence was understood that way (circa seventeenth century), there existed an expectation that the defendant would retaliate without reluctance. The emotional source of the defendant’s actions was anger, but it was a characterisation of anger as ‘outrage’ as opposed to anger based on a loss of self-control. As Dressler writes: ‘The hot-blooded response of the man of honor was not an out-of-control response to an affront, but was a morally justified hot-blooded and controlled rational retaliation in proportion to the nature and degree of provocation involved.’Footnote 62 I agree with Dressler that, though this explanation can help us understand the aetiology of the defence, it is no longer fitting to base present law on this reading as to do so legitimises violence based on outrage (as opposed to impaired emotional capacity). Speaking in the context of the US, Dressler writes: ‘[I]t is not proper (although perhaps understandable) today in the United States for a “virtuous person” to respond violently – even to commit a battery – in mere defense of one’s honor.’Footnote 63 Additionally, there is a strong feminist case for the abolition of the defence, given its patriarchal provenance. As Marcia Baron observes, ‘the defense, although purporting to be a concession to human frailty, is a concession primarily to certain misconduct associated with masculinity, misconduct which, moreover, is not particularly deserving of leniency’.Footnote 64 Rather we might favour a more modern interpretation of the defence as captured by Dressler:
The modern defense is not about justifiable and controlled anger as outrage to honor; it is about excusable loss of self-control. It is not enough simply to say that a defendant’s anger, which was mediated by judgment and reason, was, in the sense I have explained, justifiable or excusable: The provocation must be so serious that we are prepared to say that an ordinary person in the actor’s circumstances, even an ordinarily law-abiding person of reasonable temperament, might become sufficiently upset by the provocation to experience substantial impairment of his capacity for self-control and, as a consequence, to act violently.Footnote 65
On this reading, the defence can be included within the remit of the UPD if the defendant’s reaction to an event is framed as an understandable reaction in light of the individual’s circumstances. The event must trigger the impairment, and that impairment is likely to manifest in an impairment of volitional and/or emotional capacity. What is key, however, is that the nature of that impairment is such that it does not amount to a vengeful or cold-blooded retaliation.Footnote 66 And it is also important to remember that neither does it result in a full excuse. Rather, as Dressler puts it, we can think of the defence in an excusatory way along the following lines:
[T]he defense is based on our common experience that when we become exceptionally angry – remembering that we are not blaming the person for his anger – our ability to conform our conduct to the dictates of the law is seriously undermined, hence making law-abiding behavior far more difficult than in nonprovocative circumstances. It is this understandably greater difficulty to control conduct that appropriately mitigates a provoked actor’s blameworthiness.Footnote 67
There are two scenarios that dominate the literature, however, and so warrant further pause before we move on. The first scenario is where the circumstance in question relates to domestic abuse, and the second is where the circumstance amounts to an infidelity by the victim.Footnote 68 In the first instance, the defence tends to be raised by women in abusive relationships.Footnote 69 The UPD clearly accommodates a case where the relevant circumstances (sustained abusive relationship) are present, which may be evidenced by descriptions of physical, psychological, sexual, and/or emotional abuse, in addition to evidence of threat, coercive control, and so on.Footnote 70 Such circumstances would then need to be shown to have given rise to an impairment of mental functioning.Footnote 71 The understanding of mental functioning, as discussed previously, is broad enough to accommodate the impact of intimate partner violence on the emotional, volitional, and cognitive functioning of the person subjected to abuse, given that reactions are found to vary considerably from person to person.Footnote 72 It is also a non-medicalised definition and so prevents issues regarding the implication that individuals subject to abuse are mentally ill rather than having a typical reaction to being subjected to sustained abusive behaviour. Further, the UPD does not contain an immediacy demand, and so would accommodate more varied reactions to this type of situation.Footnote 73 Accordingly, the UPD reinforces the RPA framework by allowing space to recognise that each individual has a unique experience of being subject to abuse and a unique way of coping with that circumstance. It would then be for the jury to decide if it were morally appropriate to allow the defence. A key factor to consider here is that the UPD ought not to preclude the defendant raising a full defence, like self-defence, a point which would require further consideration.Footnote 74
The second scenario relates to where the defendant relies on the defence in a situation where the circumstance relates to an infidelity on the part of the victim. This scenario is closely associated with the historic development of the defence as outlined earlier, and it has been excluded from the definition of ‘qualifying trigger’ under the 2009 Act.Footnote 75 Applying the UPD here, there is no explicit restriction on the type of condition or circumstance on which a defendant can rely. Therefore, this situation could come within part (2) of the blueprint. Moreover, it may be possible for a defendant to demonstrate an impairment of mental functioning relating to the circumstance under part (1); however, this would need to be deemed substantial by a jury to warrant the defence. As such, this scenario highlights the significance of part (3) of the blueprint, as a means of safeguarding against undue leniency in such cases. For, a jury would have to deem it morally appropriate to recognise the defendant’s reduced level of responsibility for the offence, having regard to whether their reasons for doing so would undermine community values. The wording of the loss-of-control defence under the 2009 Act, in explicitly excluding infidelity as a qualifying trigger, is indicative of the fact that this type of explanation is highly unlikely to be deemed an appropriate reason for permitting a partial defence.
In summary, then, from the perspective of the UPD, it would be the case either that provocation/loss of control is included and deemed to come close to the American model, or that it is excluded, with a ‘custom made’ defence developed, for instance, in the particular context of homicide as a result of intimate partner violence.Footnote 76 (A working example of this type of defence is available in Queensland where the ‘killing for preservation in an abusive relationship’ defence was introduced in 2010.)Footnote 77
Finally, it is worth mentioning an argument that calls for the merger of provocation and diminished responsibility on the basis that an excusatory rationale for provocation/loss of control makes it largely indistinguishable from the diminished responsibility defence.Footnote 78 This stance would be supported by the inclusion of both situations under the UPD. However, arguments against it may be found in the limited impact of the EMED defence in the US, and also in the potential workability of a merged plea.Footnote 79 In particular, Chalmers and Robinson (separately) allude to the problem with particularised determinations, such that ‘similar cases are likely to be treated differently’.Footnote 80 This issue is considered in more detail in the discussion to follow.
Connecting Condition/Circumstance to the Impairment
For a successful defence, it is recommended that the impaired mental functioning must arise from the relevant condition or circumstance. This position is the most viable because it maps the existing definition of diminished responsibility under the Coroners and Justice Act 2009,Footnote 81 and so it is something with which juries are already familiar. Moreover, given the demand of the bounded causal theory outlined in Chapter 7, it appears that requiring a link is more likely to assuage fears that the introduction of circumstance as a basis for an excusing condition would allow absolute determinism. Broadening the circumstance/condition element allows for a causal explanation, and requiring a link to the impairment, then, ensures that the person is not excluded as cause in their own right, and so aligns with the dominant capacity-based approach to understanding excuses.
Such that the Jury Find It Morally Appropriate to Recognise D’s Reduced Level of Responsibility
The analysis of diminished responsibility in Chapter 6 highlights the persistence of normativity on the part of the doctrine in practice, notwithstanding legislative trends towards pathologising the defence. A connection was made between this persistence and the enduring standing of the jury as overseers of community norms. As such, the requirement in the UPD that the jury must find it ‘morally appropriate to recognise D’s reduced level of responsibility for the offence’ once the other aspects are established, acts as formal recognition of the fact-finder’s standing as representative of the moral community and arbiter of culpability. This approach further allays fears of absolute determinism discussed in Chapter 7 by providing a second filter through which causal accounts must pass in order to earn a partial excuse, reinforcing the bounded causal rationale.
Imposing this duty is also justifiable because it maps existing practices where juries are already called on to make normative decisions about challenging issues such as the role of mental state in relation to excusing conditions. And, as Perlin notes, in relation to their approach to the insanity defence, for instance, juries tend to be overwhelmingly cautious.Footnote 82 There is little reason to doubt their approach would be different in relation to the UPD. However, the point is that including wider situational context is likely to elicit more compassionate responses and it is therefore hoped that the UPD would be engaged to provide a more accurate determination of proportionate just deserts, as a well as a more parsimonious approach to criminal condemnation.Footnote 83
In his defence of a general mitigation, Robinson, too, endorses the need to fore-front the normative inquiry in this way. His proposed definition would require juries to consider ‘to what extent would giving the offender a mitigation specifically undermine community norms?’Footnote 84 This approach is designed to ensure that even where a defendant might meet the other requirements of the defence, it may yet be appropriate to deny them. For instance, we might recall the discussion of cases involving domestic abuse where an abuser can show that their mental functioning was impaired by a given condition or circumstance. In this type of case, it would then be for the jury to determine whether or not they want to legitimise such explanations for wrongdoing. It is also possible to imagine harms involving racist, sexist, and other discriminatory motives falling foul of this requirement. Of course, Robinson himself admits to the risk that ‘every mitigation and defense may undercut the community norm that condemns the conduct constituting the offense at hand’ [emphasis in original).Footnote 85 And for this reason, he stresses the need to keep this inquiry specific, that is, ‘would the reason for giving the mitigation undermine community norms?’ [emphasis added]. Thus, the jury would then be in a position of distinguishing between cases where a person’s explanation for acting stems from an offensive position (e.g. harming a partner because they acted in a way that brought shame on the defendant, or assaulting someone because of a hatred towards their sexuality or race, and so on), and those where they may have been acting out of desperation in the face of a challenging circumstance (e.g. where a parent steals baby formula because their child was starving).Footnote 86 In granting the defence in that instance, the jury would be legitimising the value of compassion, which would not undermine societal norms, and would therefore amount to a ‘morally appropriate’ decision.
Connecting the Defendant’s Conduct to the Impairment
The words ‘such that’ in Part (3) connect the impairment of mental functioning and the defendant’s conduct. As discussed in Chapter 6, the present law of diminished responsibility under the 2009 Act is explicit in requiring that the mental condition element provide ‘an explanation’ for the defendant’s conduct, framing the abnormality of mental functioning very clearly as the cause of the killing.Footnote 87 In Ireland, section 6 of the 2006 Act takes a lighter touch, stating, ‘the mental disorder … was such as to diminish substantially his or her responsibility for the act’. The UPD would endorse something close to the Irish approach because it is not possible to categorically discern a causal link between a mental state and the conduct, and so the second option is less exacting on this point, allowing the question to be a normative one for the jury to decide. This approach reflects the fact that, in practice, experts tend to avoid this question.Footnote 88
Practical Considerations
This section considers practical considerations arising from the UPD, relating to evidential factors, potential outcomes of a successful UPD, and the key challenge of fact-finder competence.
Evidential Factors
Evidential matters relating to the operation of the UPD would remain a matter for the court under the standard rules of evidence and would not be dictated by the legislature. Such determinations, however, as Morse observes, are not always immune to ‘political, social, and moral forces’.Footnote 89
It is envisaged that burden of proof for the UPD would map that of the partial defence of diminished responsibility, such that it would be for the defence to provide evidence to satisfy the requirements on the balance of probabilities.Footnote 90 It is also envisaged that the UPD could operate as part of the plea-bargaining process where the judge would become decision-maker, as occurs with the present doctrine of partial excuse.Footnote 91 As Morse notes: ‘[i]f a general partial responsibility excuse were available, it would be factored into the negotiations about what level of culpability, in addition to sentence, both parties would accept.’Footnote 92 This approach reflects the reality that the majority of criminal cases are disposed of through a plea agreement. Therefore, in order to avail of the partial excuse, the defendant would have to present to the jury (or judge in case of a plea bargain) evidence of the following: the factual condition or circumstance, the substantial impairment of mental functioning, the causal link between circumstance/condition and impairment, and the connection between the impaired mental functioning and the defendant’s conduct.
Reflecting the observations relating to the diminished responsibility defence in Chapter 6, it is argued that fore-fronting the normative question does not involve necessarily displacing the role of the expert. Rather, with the jury as gatekeeper, in order to evidence a broader scope pertaining to conditions and circumstance, a more diverse field of expert and/or lay evidence ought to be permitted to empower the jury to determine the ultimate issue. That said, all evidence, of course, must abide by the standard rules of admissibility in that it must be relevant to the matter at issue and be credible to the court. For example, Lambert points to the introduction of factual evidence of condition or circumstance as an ‘objective foundation’ of a claim to impairment, and as a means of ensuring that ‘the defendant’s claim to excuse is rooted in something more substantial than her own subjective description of her experience, thus guarding against fabrication’.Footnote 93 For instance, conditions like addiction can be evidenced by medical and psychological records, as can trauma and emotional immaturity. Moreover, evidence could be provided not just in relation to the existence of the condition in question but of how that condition can bear on mental functioning generally, leaving it to the jury to decide on the ultimate question regarding the relationship between the impairment of mental functioning and the conduct of the defendant, in particular.
Finally, it is worth noting the greater potential benefit of allowing for evidence of wider circumstance to be proffered from a social justice perspective. Returning to our cultural defence example, if a defendant was relying on some form of cultural evidence to support a claim, the UPD would provide a space for that to be considered in court in a formal way, reflecting the inherent vulnerability of personhood. Levine provides the narrative of how this may be done and, by observing the role of the prosecution, captures the subtle way that the UPD could potentially advance social justice through recognition in the form of educating key decision-makers about the defendant’s wider moral story and embedded personhood:
The defense must proffer hard evidence of culture to even raise any of these defenses: an expert must testify to the current existence of the cultural practice on which the defendant allegedly relied, and the defendant must introduce evidence (testimonial or otherwise) that she actually relied on this practice when committing the act for which she has been charged. But the prosecution also has responsibilities when the defendant undertakes a cultural defense strategy. The government’s lawyers must educate themselves concerning the cultural practice at issue in order to recognize and to rebut stereotypes, outdated impressions, or incorrect information offered by defense witnesses.Footnote 94
Outcome of a Successful UPD
The structure of the UPD is bound by the requirements of proportionality, parsimony, and feasibility. The RPA mandates that the defence must enable the delivery of just deserts in a way that recognises the role of socio-structural circumstances in determinations of culpability, and in a way that acknowledges the scalar quality of rational capacity as a central excusing condition. Parsimony, in turn, demands that the delivery of proportionality does not result in over-blame. Chapter 5 explored potential approaches and argued that the most appropriate structure for the UPD is one that avoids the creation of lesser offence categories for reasons of feasibility and consistency, and promotes instead a stand-alone defence that, if successful, results in a fourth verdict (beyond ‘guilty’, ‘not guilty’, or ‘NGRI’), denoting partial responsibility.Footnote 95 However, in order to offset pathological moral assessment as required by the principle of parsimony, it is recommended that the language of the UPD is construed in more neutral terms, replacing the word ‘guilt’ with less morally loaded phraseology.Footnote 96 Alternatively, wording that focuses on accountability may be workable: ‘responsible’, ‘responsible with partial excuse’, ‘not responsible’, for instance.Footnote 97
Following a successful defence, in line with most advocates of an extended version of partial excuse, the UPD envisages a concomitant reduction in punishment.Footnote 98 How such a process would operate would be highly dependent on the sentencing principles, practices, and policies of a given jurisdiction. For instance, in Ireland, which traditionally affords a high level of discretion at sentencing, it may be that a relatively flexible direction could be given that, if successful, the defence would mandate the sentencing judge to consider it as a factor in mitigation. Other jurisdictions, like England and Wales, rely more heavily on sentencing guidelines. As such, it would also be possible to accommodate a concomitant sentencing discount based on a successful UPD within a more prescriptive system.Footnote 99 In this regard, a process could be envisaged that aligns with the present Sentencing Council Guidelines on a ‘manslaughter by reason of diminished responsibility’ outcome.Footnote 100 Here, the court determines the level of responsibility retained by the person convicted as ‘high, medium, or low’, asking the court to consider ‘the extent to which the offender’s responsibility was diminished by the mental disorder at the time of the offence with reference to the medical evidence and all the relevant information available to the court’.Footnote 101 The UPD verdict could be written in as a factor ‘reflecting personal mitigation’, similar to ‘age and/or lack of maturity’ mitigation, which has been in place since 2019. Johnston provides some similar examples in relation to Greece, where a fixed reduction in punishment is imposed, or, in the instance where prison and a fine are provided, only the latter can be imposed.Footnote 102
Relatedly, at a time when the need to promote community sentences is growing (for reasons of prison overcrowding, evidence of the criminogenic impact of custody, and the potential of community sentences to promote desistance), the UPD may align with policy that asks the judiciary to consider non-custodial sentences in the first instance.Footnote 103 In this vein, Johnston recommends that a successful generic partial defence ought to permit consideration of ‘less restrictive forms of penalties, at least for offences of low severity’.Footnote 104 She gives the example of a non-carceral option which would ‘both recognize the individual’s reduced responsibility and permit the provision of mental health treatment in a setting more conducive to therapeutic success’.Footnote 105 In the context of cases that give rise to evidence of need, Johnston also makes the point that a partial responsibility verdict could improve the institutional responses to individuals with serious mental health requirements, for instance.Footnote 106 We might also imagine a scenario that could flag welfare needs, particularly in chronic low-level offending cases, relating to circumstances that correlate with criminogenic behaviour like addiction and trauma.
Building on the discussion in Chapter 4 regarding the role of the criminal justice system in contributing to crime as a social problem, the UPD presents an opportunity to identify and respond to needs that generate situational vulnerabilities, like homelessness and deprivation and mental health problems, in addition to recognising and attempting to ameliorate the cognitive burden of criminal justice involvement which can give rise pathogenic vulnerability.
Fact-Finder Competence
Most scholarship highlights issues pertaining to jury competence as a key challenge facing a generic partial excuse.Footnote 107 This objection has been considered in Chapter 6 and also earlier in the context of the role of the jury in assessing whether or not it is morally appropriate to allow the defence. The emphasis on normativity as a steer on questions relating to what constitutes ‘substantial impairment’ and what might amount to ‘morally appropriate’ point to a greater complaint that may be made against the defence, however, that it would lead to unpredictability of outcome, opening opportunities for abuse of discretion. Chalmers raises this concern in response to Mackay and Mitchell’s fused provocation/diminished responsibility proposal,Footnote 108 as does Robinson some years ago in relation to the similarly drafted EMED plea.Footnote 109 This issue is largely concerned with the quality of jury (and judicial) decision-making in relation to complex moral and legal determinations, and there is no clear answer to it, at present.
Certainly, there is significant evidence that brings into question a jury’s ability to assess critical evidential points, like witness credibility, in an objective way. In their project on jury reasoning and decision-making, Chalmers, Leverick, and Munro raise concerns about jury reliance on demeanour and how they assess external markers of credibility, recommending that judges direct juries about the need to treat conclusions based on demeanour with caution.Footnote 110 Concerns such as these raise valid questions about a jury’s ability to handle this level of normative complexity. Given it is accepted that the UPD would be dealt with in plea agreements, the same can be said of judges, whose ability to discern objectively is also highly questionable.Footnote 111
Yet it is interesting that Robinson, at least, appears to have altered his view on this point with his proposal for general mitigation: ‘[T]he complexity of the justice judgment being requested here ought not be a matter of concern.’Footnote 112 More recently, he defends mitigation at the pre-verdict stage on the basis that it is more appropriate for the jury to engage in normative evaluations than the sentencing judge. He argues that juries are better placed to represent community values, that groups are more suited to making these types of decisions so that multiple factors can be considered, and he also argues that having the jury make these decisions brings added legitimacy to the criminal justice system with related crime control benefits.Footnote 113 Robinson’s change of heart may have to do with a sense that there is a greater demand for and trend towards facilitating more nuanced desert calculations,Footnote 114 a renewed conviction that members of the jury are capable of delivering this type of judgment,Footnote 115 and a realisation that this approach is needed in order to reinforce the legitimacy of the criminal law.Footnote 116
In defence of the UPD, a core argument threaded throughout this book relates to the need for formal recognition of proportional justice at the culpability evaluation stage. With juries (as well as judges) as the pre-verdict arbiters of fact, this argument inevitably asks more of them in terms of discerning fine-grained levels of culpability. Yet Chapter 5 shows how juries already make these difficult decisions, tending towards harshness, but when faced with clear injustice, push for a morally appropriate outcome, for instance, in the case of mercy killers. But we can never be certain about how juries will respond, and perhaps the most we can hope for is to more formally accept the ambiguity that comes with the delivery of just deserts in a more proportionate way, as a sphere of inquiry. Jury studies that bring into question how decisions are made provide valuable insight into how potential causes for concern might be ameliorated so that biased decision-making can be prevented, for instance, through jury training and more detailed directions from judges. A more preventative approach to unjustifiable claims might also be taken.Footnote 117 All in all, the greater point of the RPA is that proportionate justice, delivered parsimoniously, and in recognition of the inherent, situational, and pathogenic vulnerabilities of the defendant at the culpability evaluation stage, is enough to make these practical challenges worth overcoming.
Conclusion
This chapter closes the argument for a UPD, but also marks the beginning of another level of inquiry. Having put forward a case for the UPD over the preceding chapters, the blueprint outlined here starts to give shape to the defence, to define its requirements, and to test its boundaries. The chapter has offered a proposal that expands the grounds of the doctrine of partial excuse to include a broader array of conditions and circumstances in recognition of the enmeshed reality of personhood. It attempts to allay fears of absolute determinism by ensuring that the central excusing condition revolves around the individual’s mental functioning, but in a way that reflects a more authentic account of the human mind, in its inclusion of cognitive, volitional, and emotional capacities. What’s more, it builds in causal safeguards pertaining to the connection between the basis of the excuse and the excusing condition, in addition to the impaired mental functioning and the defendant’s conduct. The defence necessarily relies on the jury as key decision-maker seeking to reinforce their role as overseers of the moral community. This point is not without its challengers. However, it is submitted that with sufficient statutory direction pertaining to the requirements of the defence, in addition to judicial guidance, the level of decision-making required in implementing the UPD is within the bounds of what is reasonable to expect of the fact-finder, particularly given that the defence acts to reduce, and not remove, the defendant’s responsibility for an offence.