Space, time and function: intersecting principles of responsibility across the terrain of criminal justice
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- Lacey, N. Criminal Law, Philosophy (2007) 1: 233. doi:10.1007/s11572-006-9025-7
This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance.
The idea that criminal law may most accurately be mapped in terms of a diverse set of co-existing principles of responsibility is hardly novel. In his pathbreaking Rethinking Criminal Law (Fletcher, 1978) George Fletcher used examples from a broad historical and comparative canvass to identify three distinct ‘patterns of criminality’. Within the pattern of manifest criminality, the essence of criminal responsibility was located in acts generally recognisable as threatening to established community interests. On a conception of subjective criminality, by contrast, criminal responsibility was founded in the particular intentions and other subjective states of mind of the defendant him- or her-self. And in a third conception, the pattern of criminality was located in a conception of the risk or harm implied by the relevant criminal conduct. Crucial to Fletcher’s account was the claim that these philosophically diverse patterns of criminality might co-exist—indeed had co-existed—within particular systems of criminal law. While the pattern of manifest criminality might certainly be seen as being on the wane from the late Eighteenth Century on, neither the subjective nor the harm- or risk-based pattern could necessarily pretend to dominance, let alone exclusive jurisdiction, in late modern systems of criminal law such as those of Britain, Germany or the United States. Indeed, in the case of English criminal law, it is arguable that traces of the pattern of manifest criminality persist, emerging as counters to established doctrines, and as counters with sufficient plausibility to cause significant trouble to the criminal courts.1
As Fletcher’s account makes clear, broad shifts of influence among these patterns of criminality may be readily identified over long sweeps of space and time. Fletcher generally confines himself to a doctrinal interpretation of the shifts, rather than undertaking a socio-historical analysis of their broader causes or roots in culture, institutional structure or political economy. He is dismissive of—and has persuasive arguments against—Jerome Hall’s famous political-economic explanation of one of the most fascinating creations of the pattern of manifest criminality: the highly technical conception of ‘breaking bulk’, which allowed for a convenient expansion of the law of theft to cover expropriations beyond those consisting in the outright takings from possession which constituted the original offence (Hall, 1952). Though Fletcher does not reject outright the broad idea that changes in the criminal law might track the changing needs of economy and society or the changing institutional capacities of the criminal process, his primary focus on the (in his view) relatively autonomous dynamics of criminal law doctrines precludes him from developing any general hypotheses of a socio-legal kind. In this paper, by contrast, I want to explore precisely such hypotheses. For while, like Fletcher, I am sympathetic to the idea that legal doctrines do have a certain autonomy, and are not susceptible of the straightforwardly reductive socio-political explanations ventured by some versions of Legal Realism or Law and Economics, it is clear that legal doctrines do not develop in a social or institutional vacuum. Therefore, to put the point in the language of systems theory (Teubner, 1993) while legal doctrines are normatively closed, they remain cognitively open; and the environments in which they operate create interference which the relatively closed legal system has to incorporate—even though in doing so it translates that interference into (adapted versions of) its own terms. The development of hypotheses about how and under what conditions particular areas of legal doctrine ‘translate’ the ‘interference’ from their environment therefore constitutes one of the most interesting challenges for socio-legal scholarship.
My argument is premised on ideas developed in a number of other papers (Lacey, forthcoming, 2001a, b, 2004), and the main rudiments of which I must therefore summarise at the outset. The method which I am developing sets out from a relatively simple set of hypotheses which provide a framework for investigation and a means of exploring the linkages between particular conceptions of responsibility and the substantive role of criminal law in modern social governance. Ideas of individual responsibility for crime develop, I suggest, as responses to structural problems of co-ordination and legitimation faced by systems of criminal law. The content and emphasis of these problems can be expected to change according to the environment in which the system operates: important factors include the distribution of political interests and economic power; the prevailing cultural and intellectual environment; the organisation and relative status of relevant professional groups; the array and vigour of alternative means of social ordering; the prevailing balance between criminal law’s quasi-moral and its regulatory, instrumental aspects. Within this basic framework, I argue, we may approach criminal responsibility as a practice of attribution specific to criminal law yet connected with prevailing intellectual ideas, including philosophical theories about the nature of human being. The practical orientation of responsibility in criminal law, decisively shaped by the institutional context of the criminal process, suggests however that we should leave ourselves open to the possibility that the relationship between moral-philosophical and legal conceptions of responsibility is more oblique than is generally assumed in criminal law theory. Moreover it makes it possible that multiple and philosophically variegated conceptions of responsibility are operating within criminal law practices of attribution without any necessary illogicality or incoherence.
The primary purpose of this paper is to consider the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. First, I give an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. My own account is therefore somewhat different from that proposed by Fletcher, although there are undoubtedly overlaps between my ‘character’ conceptions and his notion of ‘manifest criminality’; between certain versions of a ‘capacity’ conception and his notion of ‘subjective criminality’; and between ‘outcome responsibility’ and Fletcher’s pattern of ‘harm- or risk-based criminality’. My preference for a distinction based on capacity, character and outcome principles derives from their closer articulation both with ideas in moral and political philosophy and with specifically responsibility-oriented concepts, for my focus is particularly on the emergence of ideas of responsibility rather than on broad patterns of criminality (though I would certainly acknowledge an important link between the two). Having developed this differentiated conceptual account, I go on in the second main section of the paper to use it to analyse and interpret certain aspects of the contemporary criminal law of England and Wales. In conclusion, I shall consider a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance.
In what follows, I make a number of assumptions, which are not explicitly argued for in this paper. First, I assume that a full assessment of operational principles of responsibility may not confine itself to the terrain of criminal law doctrine but must take into account the total spread of criminal justice practices: legislation, policing, prosecution, plea-bargaining, judicial and jury decision-making on questions of both liability and sentence, while attending to the specificities of responsibility-attribution at each stage. These overall processes may usefully be conceptualised as the (more or less integrated) practice of ‘criminalisation’. Second, I assume that the realisation of moral/philosophical ideas of responsibility has institutional conditions of existence, and that our analysis of criminal responsibility must, accordingly, be historically and system- specific. Third, I assume that ideas of responsibility play certain structural roles in legitimating and coordinating practices of criminalisation. And, fourth, I assume that it is possible, even likely, that multiple ideas of responsibility may be operating in practices of criminalisation at any one time—hence the utility in developing a differentiated scheme of possible attribution principles for interpretive purposes.
Distinguishing diverse conceptions of responsibility
In this section, I want to begin to take the argument forward by sketching a more disaggregated conceptual map for the purposes of analysing the historical development of ideas of criminal responsibility. The division of attribution principles into three family groups—capacity, character and outcome principles—is familiar in criminal law theory (Horder, 1993; Tadros, 2005). I shall suggest however that it is useful to make a further subdivision between these overall principles, generating a more sensitive analytic scheme.
‘Capacity’ principles: choice and opportunity
The dominant way of thinking about responsibility in contemporary British and American criminal law doctrine turns on the notion of human (or more rarely, corporate) capacity. On this view, the foundation of not only a person’s status as a responsible agent answerable to the normative demands of the criminal law2 but also of an attribution of responsibility for specific actions lies in human capacities of cognition—knowledge of circumstances, assessment of consequences—and volition—powers of self-control. The crucial factor is the way in which these human capacities—human agency—are engaged in advertent conduct: to put it crudely, responsible conduct is conduct which the agent chooses. This notion of capacity-based responsibility naturally issues in a focus on so-called subjective principles of mens rea: intention, recklessness or foresight of relevant consequences, knowledge and so on. These forms of mens rea essentially consist in subjective mental states on the part of the defendant. Prime examples in English case-law would include R v Morgan3 (now reversed by the Sexual Offences Act 2003) and B v DPP.4
Many commentators have noted the increasing emphasis on this form of subjectivism, though there is considerable disagreement about the degree of its realisation and the timing of and reasons for its ascendancy. On Smith’s view (Smith, 1998), it is a by-product of utilitarianism, which implies not merely the impropriety but the ineffectiveness of attaching culpability to inadvertent conduct. It has also been argued to be associated with the increasingly psychologised view of human agency attendant on scientific developments during the course of the Nineteenth Century (Eigen, 1999; cf. Smith, 1981). In another account, both Alan Norrie and I have argued that its progress may be explained partly in terms of its ability to provide a legitimating principle which is relatively independent of any evaluation of the relevant conduct. The proof of intention or subjective recklessness being a question of fact, the emphasis is simply on proof of the requisite mental state; a feature which may be useful in a system which criminalizes a huge range of conduct, much of it beyond the terrain of ‘real’ or ‘quasi-moral’ crime, and in which moral pluralism or value conflict risks tensions which a factual view of mens rea may help to keep out of the courtroom (Lacey, 2001a; Norrie, 2001).
Whatever the merits of these competing or complementary accounts of the rise of choice-based principles of responsibility, it is clear that, both conceptually and practically, they are not the only way of looking at capacity principles of attribution. For the basic moral intuition underlying the capacity view can be interpreted in another way, with decisive implications for the shape of criminal law. If the basic moral intuition is that it is only legitimate to hold people criminally responsible for things which they had the capacity to avoid doing, we can realise this intuition in one of two ways. We can do so through proof of subjective choice in the sense of intention, awareness, knowledge (Williams, 1983) or we can ask—as Hart did (Hart, 1968)—whether the defendant had a fair opportunity to conform his or her behaviour to the criminal law standard. This second approach has the implication that not only subjective mental states but also ‘objective’ standards like negligence or the imposition of reasonableness constraints in the specification of defences may be accommodated. It also, therefore, offers an account more likely to be able to rationalise the actual shape of systems of criminal law. From the point of view of the argument which Norrie and I have advanced, this is however at the cost of revealing that a criminal trial is, inevitably, in the business of making a potentially controversial normative evaluation of the defendant’s conduct. The question to be proven is no longer the relatively neutral, factual and dualistic: ‘Did D cause P’s death? If so, did s/he do so with intent to cause death or grievous bodily harm?’; ‘Did D have sexual intercourse with P? If so, did s/he do so intentionally and aware that P was not consenting?’ It is, rather, ‘Did D do these things in circumstances in which we would say that they had had a fair opportunity to avoid them?’ The answer to this question may, of course, be provided by proof of intent or subjective recklessness. But it might also be answered in terms of D’s indifference or omission to advert to a risk which would have been obvious to a reasonable person, or to which it would be reasonable for us to expect D to advert, such that we would be inclined to say that D had a fair opportunity to avoid homicide or rape. So long as we are confident that D has the capacities of a reasonable person, this fair opportunity view is perfectly consistent with the moral intuition underlying the capacity principle of criminal responsibility. A further perceived advantage of the opportunity version of capacity-responsibility is that it is less obviously susceptible than the choice version to the truth of determinism, in that the evaluation can be relative to socially pervasive reactive attitudes (Strawson, 1982). The issue, in other words, is not what we ‘could’ have helped, whether we ‘could’ have chosen otherwise, but what prevailing social norms judge us to have had a fair opportunity to help or choose. Notice how this version of the opportunity theory implicitly maps responsibility doctrines onto a particular view of the aims and functions of the criminal law.
‘Character’ principles: overall character; expressed disposition towards the relevant criminal law norms
The idea that an attribution of criminal responsibility is in some sense an evaluation of character has been advanced in radically different guises by Michael Bayles (in Humean form and in relation to criminal responsibility in general) (Bayles, 1982), by John Gardner (in Aristotelian form and in relation to defences, conceptualised as mechanisms ensuring that we are not held responsible for things which are ‘out of character’),5, in my own early work (Lacey, 1988) and most recently by Tadros (2005). In its most radical form, it is thought by capacity theorists to be morally unacceptable to the extent that, unless we are held to have capacity for our characters, character responsibility implies holding us accountable for things which we could not, or had no fair opportunity to, avoid; it has also been argued that it is premised on an inappropriately ambitious vision of the moral role of criminal law.6 Since my purpose in this paper is interpretive rather than normative, I shall set these objections aside for the moment. It is worth noting, however, that it is also possible for character and capacity notions to be combined, as Martin Wiener has persuasively argued they were in the early Victorian criminal justice project,7 which aspired not merely to hold people responsible for conduct disclosing bad character, but also to use the penal process to reshape character, in part precisely by engaging the capacity-based agency of subjects.
The more radical of the two character principles which I want to distinguish may be labelled the ‘overall-character principle’: it holds that the attribution of criminal responsibility is founded in a judgment that the defendant’s conduct is evidence of a wrongful, bad, disapproved character trait: disregard of human life, indifference to sexual integrity, lack of respect for property rights and so on. The criminal law, on this view, seeks to convict, label and stigmatise those of bad character or disposition: the principle of responsibility-attribution is merely a function of the overall meaning and purpose of criminal law in its quasi-moral mode, and the criminal conduct is at root a symptom of the underlying rationale for conviction and punishment, namely bad or anti-social character. A crucial question therefore arises as to the scope of the conduct which is regarded as evidence relevant to this judgment of criminal character. Systems adhering to an overall-character principle would be those in which broad character evidence is admissible: not merely previous convictions of offences with similar facts, but criminal record in general and perhaps even general evidence about lifestyle, employment history and so on. (In case this sounds far fetched, it is perhaps worth remembering that systems of this kind are not unknown in the contemporary world; and, as I have argued elsewhere, broad character-based assessments of responsibility were standard in early modern English criminal trials (Lacey, 2001b).
In its more cautious form, however, character-responsibility restricts itself to an evaluation of the specific conduct which forms the basis for the present allegation. The relevant question becomes not ‘Is D’s conduct evidence of criminal character?’ but rather ‘Does D’s conduct in causing P’s death or having sexual intercourse with P express a settled disposition of hostility or indifference to the relevant norm of criminal law, or at least acceptance of such a disposition?’ As Tadros puts it, ‘does D’s conduct qua moral agent display the sort of vice which calls for criminal law’s communicative role of expressing moral indignation to be invoked?’8 This formulation opens up an obvious path to the elaboration of defences such as duress, provocation, self-defence or—possibly—mental incapacity. It also preserves the specific allegation of criminal conduct as central to the rationale for conviction and punishment, and is founded on a particular understanding of D’s status as a moral agent: a reasoning being responsible for their beliefs, desires, emotions and values. While taking a more cautious view of relevant evidence, it would also naturally locate an attribution of responsibility within a broader time frame than that implied by the capacity principles. For the context within which an agent has acted—a history of domestic abuse, for example—will be relevant to an evaluation of the disposition which that action expresses.
It has also been argued—notably by Honoré (1988)—that being the cause of a particular outcome may under certain circumstances ground an attribution of responsibility. Honoré’s argument for ‘outcome responsibility’ is based on the idea that we are truly responsible for the outcomes of our actions even when they are ‘accidental’ in the sense that we could not have done otherwise than we did. Honoré’s argument is that the results of our actions become a part of our sense of identity, of who we are: even though we are related to unintended outcomes differently than to intended results, they nonetheless engage our agency in some morally relevant way. For example, if a person accidentally injures another person while driving, most of us would find it morally repellent if the person simply shrugged their shoulders and said, ‘Oh well, it was really nothing to do with me; it was just an accident’. In the distinctive context of criminalisation, this identification with harmful outcomes which we cause may justify the imposition of liability, particularly in contexts where the outcome is attendant on the pursuit of a voluntarily assumed and risk-creating activity. Cases of absolute liability in criminal law are cases of pure outcome responsibility: instances of strict liability subject to defences, and in particular to a due diligence defence, could be regarded as hybrids. They might be a hybrid of outcome and capacity-based responsibility of the fair opportunity kind, the latter based on a special genre of responsibility related to socially approved yet risk-generating roles such as driving or engaging in various commercial or productive processes. Or they could be a hybrid of outcome-responsibility and the more cautious of the character-based principles, founded on the defendant’s inadequate realisation of a recognised social role.
Interpreting English criminal law in the light of the threefold scheme of classification
Having sketched this more differentiated approach to analysing principles of responsibility-attribution, I will now try to illustrate how this might be applied across the different stages of the criminal process, so as to generate a more nuanced interpretation of how responsibilisation operates in criminal justice practice.
Mens rea and defences
The main debates about criminal responsibility have been focused on the stage of criminal law doctrine and its application in the courts, notably in terms of the mens rea principle and the elaboration of defences. The assumption of most criminal law theorists is that criminal law is, or at least should be, based on one coherent principle of responsibility. The majority of contemporary British and American criminal law theorists see this as being one of the two capacity principles sketched above, albeit that both character theories and theories seeking to integrate character and capacity have recently attracted significant interest.9But, at an interpretive level, it is relatively easy to demonstrate that English and American criminal law move between the two capacity principles, and moreover apply in some areas principles of liability which resonate with aspects of the outcome and character principles.
Let us focus on the capacity principles first. The existence of offences such as manslaughter, which can be committed through negligence—a form of objective mens rea—as well as the reasonableness threshold applied to elements of most of the defences, afford substantial evidence of the operation of the opportunity principle. Does this mean that the fair opportunity theory is a better account of English criminal law than the choice theory? I would argue that it does not. To establish this argument, we would have to be sure that the offences to which entirely subjective principles of mens rea apply—murder, for example—count as instances in which the ‘choice’ guaranteed by proof of intention or subjective recklessness amounts in itself to proof that the defendant had a fair opportunity to act otherwise than he or she did. This, however, can be disputed. For the limited scope of the defences, as well as the restricted time frame in terms of which the defendant’s choice is set, prevents the court from making the sort of overall assessment of the fairness of the defendant’s opportunity which is invited by the application of an open-ended ‘reasonableness’ test. In subjective mens rea cases, the law is interested, in other words, not so much in the fairness or otherwise of the circumstances in which the defendant made his or her choice, but rather in the choice itself.
Of course, the defences do some moral fine-tuning here, as do other aspects of the criminal process such as the possibility of ‘perverse’ jury acquittals, decisions not to prosecute or sentences such as the absolute discharge. But it remains the case that application of a subjective mens rea test does not itself invite an assessment of fair opportunity. A spectacular example would be that of mercy killing, which English law defines—absent evidence of mental incapacity—as an unambiguous instance of murder, however well-intentioned the defendant’s motivations or constraining the pressures under which s/he acted. Hence it may be argued that criminal law is pluralistic even across capacity principles, fixing sometimes on choice, sometimes on opportunity. Furthermore, the existence of many offences of strict liability to which no due diligence offence applies shows that contemporary English criminal law also espouses principles of outcome-responsibility to a significant degree. The applicability of the general defences to most of these offences means, however, that it is outcome-responsibility of the hybrid kind: if not guaranteeing fair opportunity or vicious disposition, the law is at least ruling out liability in certain particularly egregious instances of lack of fair opportunity or clear cases of virtuous or socially approved disposition.
Can it be argued that any aspects of criminal law’s liability standards lend themselves to interpretation as based on character rather than capacity or outcome principles? I would argue that there are indeed significant traces at least of the more cautious version of the character approach in contemporary English criminal law. My reason for arguing this lies both in substantive law and in the law of evidence. Tadros’s recent monograph makes a powerful case that only a version of what I have called the ‘cautious’ character theory can capture the essentially evaluative and communicative nature of criminal condemnation. Tadros argues that both mens rea requirements and many defences represent the criminal law’s attempt to restrict responsibility-attribution to those who, qua agents, have displayed a morally vicious character through the relevant conduct.10 Indeed, he argues that the operation of the prevailing, open-ended, reasonableness tests may under certain circumstances invite inappropriately broad character inferences, punishing for vices such as ignorance rather then restricting criminal punishment to appropriate moral terrain such as wilful blindness, indifference and so on. This is a symptom, perhaps, of the curious vacuum in contemporary criminal law in relation to a substantive theory of criminalisation, itself a product of the ‘factual/scientific’ orientation of the subjectivist capacity theory, and of a certain discomfort with the morally controversial nature of criminal judgment.11
To press home the plausibility of a reading of aspects of contemporary English criminal law as based on a character conception of responsibility, it is useful to look in a little more detail at these ‘reasonableness’ standards in relation to which Tadros raises some concerns. To take some examples, defendants have long been held responsible for the offence of manslaughter on the basis of ‘gross negligence’ (Lacey et al., 2003, Chapter 6.IV.c)—a serious departure from the standards of care or awareness to be expected of a reasonable person. Similarly, defences such as provocation, duress and even self-defence have long depended on the establishment of reasonable grounds: the provoked defendant is held to the standard of how a reasonable person would have reacted (Ibid. Chapter 6.IV.d.ii): the threatened person is assumed to be a person of reasonable firmness (Ibid. Chapter 4.II.e); the person defending herself is not excused for an unreasonably excessive response to the attack (Ibid. Chapter 6.IV.e). Similarly in the law of theft, a defendant’s honesty (or lack thereof) is judged in relation to his or her apprehension of how their conduct relates to the standard of what an ordinary—for which read ‘reasonable’—person would have regarded as honest or dishonest (Ibid. Chapter 4.II.a.ii). Think too of Lord Diplock’s famous (or, among doctrinal subjectivists, infamous) argument for the expansion of the concept of recklessness to encompass not merely the person who has foreseen an unjustifiable risk before taking it, but also the person who has given no thought to a risk which would have been obvious to a reasonable person.12 This person, Lord Diplock suggested, was not merely as dangerous as the advertent risk-taker, but also as culpable, since in a world in which many of our actions self-evidently have implications for other people, the failure to maintain a basic level of care and attentiveness is reasonably adjudged—as one might paraphrase his argument—a defect of character. As a practical system oriented to social control, it might be argued that the criminal law is entitled to hold us to this ‘reasonable’ standard, and, on a character-based conception of responsibility, a negligent as well as a deliberately vicious disposition, when expressed in action, may form a proper object of the law’s attention (Lacey, 1988, Chapter 3).
This idea of responsibility for a disposition exhibited or expressed in action invites an accommodation of criteria beyond subjective consciousness as relevant to the court’s evaluation. But it should be noted, as Duff has pointed out,13 that this is not necessarily a case of ‘objective’, unreasonableness-based liability as opposed to ‘subjective’ liability based on the defendant’s own point of view. This may be illustrated by the recent history of the law of rape. From the time of the Morgan decision in 1976,14 English criminal law held that a defendant’s honest mistake as to the victim’s consent to sex entailed a lack of criminal intent even if there were no reasonable grounds for that mistaken belief: the man who honestly believed that the person he was having sex with was consenting did not intend to rape, nor was he reckless as to the risk of rape. This position was recently reversed by the Sexual Offences Act 2003. But in between the 1976 decision and the 2003 legislation there arose a debate about how to classify the defendant who, in effect, testified that they had given no thought to the question of consent: the person who had gone ahead, as one judge somewhat unfortunately put it, ‘willy nilly’: who ‘couldn’t have cared less’—or who simply acted on the tacit assumption of consent. On a strictly subjectivist, cognitivist view, this should have been insufficient: the person who has given no thought to lack of consent cannot be shown to have had the subjective awareness of lack of consent which was essential to mens rea under the Morgan test. But, significantly, the courts were reluctant to accept this apparently logical conclusion. Instead, they gradually developed a doctrine known as ‘wilful blindness’ or ‘practical indifference’15, accepting that these attitudes—it seems awkward to call them ‘states of mind’, because in some senses they are precisely the reverse—were sufficient to establish the mens rea of rape. Again, we might see such mechanisms in terms of an idea that when criminal law holds defendants responsible it is making an evaluation of the character displayed in their conduct. But the standard is oriented to this defendant’s ‘indifference’; the ‘reasonableness’ of that indifference merely operates as an evidentiary mechanism.
The large number of evidential presumptions operating in English criminal law, as well as a smaller number of conclusive, legal presumptions, operating against defendants, give further reason for thinking that character principles operate at the level of formal conviction (Ashworth & Blake, 1996). Presumptions may or may not leave room for a capacity interpretation. If someone is, for example, conclusively presumed to have raped a person whom they have defrauded as to the nature and quality of the act of sexual intercourse, the law might be interpreted as saying that this person’s conduct has conclusively expressed an indifference to the law’s anti-rape norm, or it could be argued that the basis for the attribution of responsibility for rape lies in the choice to defraud and/or the fair opportunity not to have defrauded. But the evidential presumption that someone who has sex with a person who is inebriated or unconscious does so without either consent or a reasonable belief in consent seems to put the capacity aspect of responsibility onto the back foot. For this behaviour is assumed to express indifference to the anti-rape norm unless the defendant can produce evidence rebutting the inference.
It may be argued, of course, that such presumptions—like the many presumptions operating in the area of drug and property offences—are designed to overcome the problems of proving the advertent forms of responsibility associated with the choice-based version of the capacity principle crafted in dualist terms. Where a legal provision assumes that possession of a certain quantity of drugs is presumptive proof of an intention to deal, or that possession of stolen goods under certain circumstances is presumptive proof of a dishonest intent, this is clearly geared to easing probative difficulties which might otherwise obstruct the law’s broader purposes. But the selection of the specific circumstances around which the presumptions operate is informed by judgments about behaviour which may be assumed to express anti-social or criminal practical attitudes or character. Once again, therefore, we seem to be confronted with a hybrid rather than a pure approach to responsibility in criminal law doctrine. This conclusion is strengthened by the fact that English law has recently changed in such a way as markedly to expand the forms of character evidence admissible in criminal trials. This broadened admissibility of character evidence16 will inevitably shape the practices of attributing criminal responsibility in the trial process. For it has changed the structure of knowledge-co-ordination at the trial by providing material from which judge and jury may form evaluative, character-based assumptions which will supplement legal capacity-based tests wherever—as is usually the case—they are sufficiently open-ended to admit of character-based inferences (Redmayne, 2002). Even before this formal expansion, the relevance of evidence about a defendant’s dispositions could have a decisive impact in criminal trials. Think for example of Kingston,17 whose conviction for a sexual assault on a minor was restored by the House of Lords. While the formal basis for his conviction lay in the argument that the nature of a sexual assault made it implausible that Kingston’s involuntary intoxication had in fact been such as to deprive him of the capacity to form the relevant mens rea, the impact of evidence that literature disclosing his sexual interest in young boys had been found at his home can hardly be doubted to have strengthened the inference of responsibility.
Pre-trial practices: policing and prosecution
When we broaden our focus from the moment of attributing formal responsibility in criminal law doctrine towards the earlier and later moments in the practice of criminalisation, the evidence of multiple principles of responsibility increases markedly, and includes, unfortunately in my view, marks not only of the cautious but also of the ‘overall’ character approach. Take, for example, the plentiful evidence from many jurisdictions of differential policing and prosecution practices structured around the social axes of race, ethnicity, class, gender. The process of selecting the pool of people to whom formal attributions of criminal responsibility will be applied is inevitably affected not only by police and prosecution judgments about choice or fair opportunity but by assumptions about character or disposition—themselves, unfortunately, sometimes based on inaccurate and prejudiced stereotypes about the kinds of people likely to be involved in criminal conduct. The extent and nature of such character-based judgments is, of course, a matter for empirical investigation; but such evidence as we have, particularly about police attitudes to certain racial or ethnic groups, suggest that they are pervasive.18 Historians of English criminal justice have noted that the locally based practices of filtering cases for prosecution up to the reforms of the early Nineteenth Century were heavily structured by local knowledge of character and reputation: local Justices of the Peace and Grand Juries were decisively influenced by such information, while character evidence was hugely important to the conduct of criminal trials (Lacey, 2001b, p. 258 ff.). In relation to a world in which ‘manifest’ rather than ‘subjective’ criminality was the order of the day (Fletcher, 1978) it comes naturally to make the link between these pre-trial and evidential practices and the overall shape of the principles of responsibility being applied to criminal defendants. Practices of policing and prosecution in colonial societies provide yet more vivid instances of decision-making shaped decisively by generalised assessments of character, generally structured on racial lines.19
Today, particularly in Britain and America, where criminal justice scholarship is marked by a curious and in my view unproductive division of labour between criminologists, criminal lawyers and students of the criminal process and punishment, criminal law scholars have trained their focus on the substance of criminal law (supplemented to some extent by the law of evidence), diverting attention away from the consequences of pre-trial practices to the patterns of responsibilisation as realised in criminalisation practices as a whole. Among other things, this has led to an under-developed legal debate about the consequences of even formal pre-trial developments which are based on or invite character-based responsibility attributions—some of them distinctly of the overall rather than the cautious variety. Perhaps the most obvious example here would be the creation in both the UK and US of sex offender or paedophile registers which in effect mark out a certain group of people as presumptively criminal in character.20 Another would be various anti-terrorism laws and detention practices on both sides of the Atlantic which use nationality or citizenship as rules of thumb for potential terrorist criminality.21 A further instance is the diffusion of preventive detention for those suspected of involvement in terrorism—the links here with crude assumptions about character all too evident in the U.S. Vice President Dick Cheney’s recent comment; ‘The important thing here to understand is that the people that are at Guantánamo are bad people’.22 In England, there is also the amazing survival of the (female-)gender-specific status, ‘common prostitute’ (Lacey et al., 2003, Chapter 5.III.b). Beyond this, the rapid advance of genetic technology opens up the real possibility of a pre-trial criminal process significantly shaped by genetically based assumptions as to character in the sense of likelihood of engaging in criminal conduct. In the face of this genetic revolution, the principles of responsibility so central to criminal law doctrine may quickly become marginal unless vigorously defended in the context of an understanding of the potential relevance of DNA evidence to traditional practices of legal responsibility-attribution.
Post-conviction practices: sentencing and punishment
In England and Wales, the moment of conviction has long heralded a significant dilution in the defendant’s process rights, not least in relation to constraints on the sort of evidence taken as admissible and relevant to decisions about sentence and execution of sentence. Whether in the guise of pleas in mitigation, pre-sentence reports, psychiatric reports, reports by probation officers or prison staff, a welter of information about the convicted person’s character becomes central to the decision-making process. This stretches well beyond past criminal record, encompassing judgments or information about lifestyle, attitudes, compliance with probation or prison discipline. At a formal level, in significant developments in both the UK and the US, legislation and policy structuring sentencing has in recent years added impetus to character-based attributions. ‘Three strikes’ laws; other mandatory sentences for certain kinds of offences; ‘dangerous offender’ policies of one kind or another all provide examples. The Crime (Sentences) Act 1997 which completed its passage through Parliament just before the British General Election of that year extended the Criminal Justice Act 1991’s existing policy in relation to ‘dangerous’ offenders. It did so by adopting a modified version of the American ‘three strikes and you’re out’ approach in the form of mandatory life sentences, other than in ‘exceptional circumstances’, for repeat offenders who have committed certain serious violent and sexual offences such as homicide (including attempts, incitements and conspiracies), rape, attempted rape, causing grievous bodily harm with intent and armed robbery (Section 2). The 1997 Act also provides for a mandatory minimum sentence of 7 years’ imprisonment for a third class A drug trafficking offence unless this would be ‘unjust in all the circumstances’ (Section 3) and for mandatory minimum sentences of three years for third-time domestic burglaries. More recently, we have seen the development of ‘anti-social behaviour orders’,23 under which those who have breached a formally civil order become liable to what is in effect criminal punishment. The civil order thus labels them as presumptively of criminally anti-social character. As Pillsbury has argued, these types of arrangement amount not only to punishment for bad character but also define that character in inflexible terms at the legislative level, thus removing the possibility of an individualised judgment which is arguably central to the very idea of treating defendants as agents (Pillsbury, 2002). Again, this of course does not show that character-based principles shape the attribution of formal criminal responsibility. But it does show that even to the extent that formal criminal responsibility is based on a precondition of choice or fair opportunity, the full implications of that formal responsibility will be decisively shaped by character-based judgments which modify the practical realisation of criminal responsibility in the sentencing and penal processes.
In conclusion: some interpretive hypotheses
I hope thus far to have established two things. First, a more differentiated conceptual scheme for identifying principles of responsibility can be of use in arriving at a more sophisticated interpretive analysis of both criminal law doctrine and the other rules and practices which surround the construction of criminal responsibility in the pre-and post-trial processes. Philosophical analysis here operates as an indispensable tool in the broader interpretive project of tracing practices of responsibilisation in the criminal process. Second, there is strong reason to believe that, even within criminal law doctrine, criminalisation is operating with multiple conceptions of responsibility rather than one unitary approach. But the purpose of this exercise has not been merely descriptive. Rather, the object of the analytic framework is to facilitate a more sophisticated interpretation of the shifting balance of principles of responsibility-attribution in criminalisation over time, both within criminal law itself and across the practices of criminalisation. I shall therefore use this concluding section to float a number of speculative hypotheses about what has prompted the shifts identified in the previous sections, and about what they may signify about the change of role of criminal law as a form of social governance.
The history of post-Eighteenth Century English criminal justice, I have argued, is characterised by a gradual development and strengthening of capacity-based principles within the criminal law. In an increasingly democratic world, and one in which modern ideas of agency and responsibility were being diffused in social culture, this change was necessitated by the imperatives of legitimation. Moreover, in an increasingly pluralistic world, the creation of principles of attribution which constructed criminal responsibility in essentially factual, non-evaluative terms, was highly convenient. Just as importantly, however, the emergence of subjective, capacity-based principles was fostered by the increased capability of the trial system to handle evidence about choice or opportunity. As I have argued in detail elsewhere, the development of systematic rules of evidence; the intervention of an increasingly organised legal profession; the diffusion of law reporting and, late in the day, the creation of an appellate process; as well as the development of psychological sciences which rendered plausible the idea that states of mind might constitute objects of proof in a criminal court, were each important aspects of this story of the criminal trial’s changing forensic capacities (Lacey, 2001a, b).
At an institutional level, this was not however exclusively a story of growing competence. For just as the ability of the criminal process to manage proof of what we now think of as mens rea increased, so its capacity to draw on local knowledge about character or reputation diminished, largely as a result of the fragmenting forces of urbanisation and industrialisation. It seems plausible to conclude that the new institutional capabilities indeed developed to manage problems which arose as the old capabilities were challenged by the massive demographic changes of the early Nineteenth Century. While the new co-ordinating capacities of the criminal process militated to the gradual development of subjective doctrines of capacity-responsibility, the emerging legitimation imperatives militated to the displacement of character-based judgments onto the pre- and post-trial processes. For here they were either less visible, or more targeted to populations unlikely to excite political sympathy, or both.
In a separate, but equally important, development, the massive expansion of the instrumental role of criminal law in the emerging industrial state conduced to an explosion of ‘regulatory’ offences. These, if they had been subjected to the newly emerging imperatives of legitimation via proof of subjective fault, would have threatened to swallow far greater resources than the ones which the—still by today’s standards relatively small—central state was able to devote to them. This led to another set of institutional innovations: to the reshaping and expansion of the summary jurisdiction (Farmer, 1996), and to the hiving off of outcome-based principles of attribution to a special, ill-defined category of ‘quasi-crime’ dignified as ‘regulatory offences’. These were a powerful descendant, as Dubber has argued, of the inherently vague police power, as yet uncontained within any satisfactory modern democratic or constitutional theory24 This gradual division of labour within the modern English criminal process, one in which the terrain of formal attributions of criminal responsibility was shared between the capacity-based principles dominant among the ‘quasi-moral’, serious offences, and outcome-based principles dominant among the ‘regulatory’ offences, with overtly evaluative judgments of character largely displaced onto the pre- and post-trial stages, looks philosophically fragile. Yet, though its development took the better part of a hundred years, in broad form it was remarkably stable over most of the Twentieth Century.
The speculative interpretation which I have offered in this paper, however, is that character-based principles of responsibilisation never entirely disappeared from the formal criminal law, and indeed that they are enjoying a revival at the level of both criminal law doctrines and pre-and post-trial criminal processes. To the extent that this is persuasive, the further question arises as to what the resurgence of overtly character-based practices tell us about the place of criminalisation among modes of social governance or about the overall trajectory of our societies. Literature in recent social and criminological theory suggests a number of possible explanatory dynamics—dynamics which are not mutually exclusive. Once again, they range across the imperatives of the system’s co-ordinating and legitimating needs and capacities.
The resurgence of character-based practices of attribution could be a product, first, of diminished confidence in the ability of courts to manage capacity-based judgments. In the context of increasingly complex, sophisticated and technical developments in the natural and human sciences, it may be that the pragmatic compatibilism of criminal law judgments of capacity or opportunity is being increasingly unsettled by the suspicion that incontrovertible proof of the causally determined nature of much criminal conduct is not far in the future. Ironically, this sense of diminishing confidence in attributions of capacity-responsibility may go hand in hand, second, with a renewal of confidence in the law’s authority to make quasi-moral, evaluative judgments, combined with a willingness to be ‘up front’ about these rather than disguising them beneath purportedly ‘factual’ findings of intention or knowledge.25 In a scientifically knowing world in which we cannot be sure if defendants truly had the capacity to do otherwise than they did, it may be tempting to renew our hold on older ideas of right and wrong, of good and evil, hence reconstructing a criminal process which is more explicitly oriented to the moral evaluation of character. We can see, perhaps, echoes of this instinct in ‘Left Realist’ criminology (Kinsey, Lea, &Young, 1986) and in the emergence of a focus on victims’ interests,26 both of which emphasise the reality (and socially inegalitarian distribution) of criminal victimisation, with a consequently diminished emphasis on the finer points of an offender’s responsibility for the pain or harm caused. The insistent New Labour emphasis on the development of victim-oriented policy—including for example the anti-social behaviour order—is no less indicative of this kind of trend than the last Conservative Prime Minister’s suggestion that ‘we should condemn a little more and understand a little less’.27
A third hypothesis would explore the links between these developments and broader trends in the culture and political economy of ‘late modern’ societies. Is the resurgence of an emphasis on the evaluation of character a manifestation, for example, of ‘law and order’ politics, of Garland’s ‘culture of control’ or of Young’s ‘exclusive society’? (Garland, 2001; Young, 1999) Taking just one example, Garland argues that the dynamics of American criminal justice policy have been importantly shaped by factors such as changes in the structure of social and family life, accentuated structural inequalities and a sense of diminished governmental capacity in a range of other (notably economic) policy areas. In this context, criminal justice is becoming an increasingly politically salient yet also an increasingly bifurcated field. For while a range of crimes are ‘normalised’ and dealt with, as far as consistent with legitimation imperatives, by relatively de-moralised managerial strategies, a narrower—but still highly significant—range of serious crimes are dealt with in increasingly punitive terms, through strategies which further accentuate the already strong dynamics of social polarisation. This apparently unstable yet practically powerful combination of ‘denial’ of much ‘ordinary’ crime and ‘acting out’ in terms of the vilification and increasingly intense punishment of the most serious offenders has been argued to be representative of the United States, with England (thankfully) lagging some way behind, though still displaying tendencies recognisable in terms of the American model. But if we were to look to countries elsewhere in Europe and Scandinavia—Germany, the Netherlands, Sweden—the picture would be markedly different. This suggests the need for a careful comparative development of our hypotheses (for further argument, see Lacey, 2006). For one way of interpreting the ‘culture of control’ charted by Garland, and arguably reflected in the resurgence of character-based mechanisms of responsibility-attribution, would be that the particular form of capitalism structuring the political economy of the USA (and, to a lesser extent, the UK), may be characterised by disparities of wealth so large that they are underpinning the creation of something akin to a new form of status society. And it was a status-based society, of course, which viewed as legitimate, and which sustained the coordinating capability of, the character-based principles of responsibility-attribution in England up to the late Eighteenth Century (Whitman, 2003). Finally, beyond these economic dynamics, a willingness to attribute responsibility on the basis of character may be encouraged by the emerging genetic revolution, which may have the capacity to disrupt the perceived robustness of the mechanisms of responsibility-attribution which have dominated in the western world over the last 250 years.
These hypotheses could doubtless be multiplied, and each one usefully subjected to a far more exhaustive analysis than I have been able to attempt in this paper. But whichever hypothesis—or combination of hypotheses—is most persuasive, the question of why we are seeing a reversal of the slow trend towards capacity-responsibility in English criminal law from the early Nineteenth to the mid-Twentieth Centuries cannot, I would argue, be avoided. A thorough analysis would require both a more finely grained historical investigation and a more systematic comparison than has been possible here. But any intelligent analysis of today’s criminal process needs to be grounded in an account of its history and path to its present position, and in a comparative testing of the hypotheses generated by that historical account.
For an elaboration of this argument in relation to the law of theft, deception and attempts, see Lacey, Wells, and Quick (2003, Chapter 4.II.a-d).
I am in agreement with writers like Duff, Horder and Tadros that there is a distinction to be drawn between attributions of responsibility in specific cases and a broader judgment that a subject lacks in general the capacities which underpin responsibility. These latter subjects are properly regarded as exempt from criminal responsibility, and this is the most natural way to understand ‘defences’ such as insanity or infancy. Space however precludes me from pursuing this issue in more detail. See Duff (1986), Tadros (2005, Chapter 5), Horder (1996), Lacey (2000).
(1976) AC 182.
(1998) 4 All ER 265.
See Gardner (1998), Kahan and Nussabaum (1996), Lacey (2000) and essays by Kyron Huigens, (‘Homicide in Aretaic Terms’) Kenneth W. Simons (‘Does Punishment for “Culpable Indifference” Simply Punish for Bad Character?”) and V. F. Nourse (‘Hearts and Minds’) in a special issue on The New Culpability: Motive, Character and Emotion in Criminal Law (ed. Guyora Binder) (2002) 6 Buffalo Criminal Law Review at pp. 97, 219, 361; and also see Huigens (1995) and Michaels (1998). On character and responsibility more generally, see Schoeman (1987), Gatens and Lloyd (1999) Chapters 3 and 6 (on Spinoza and responsibility), Arenella (1990), Williams (1981)
See Lacey (1991). Victor Tadros also sees a place for capacity principles within his primarily character-based theory: Criminal Responsibility op cit and in particular Chapters 2, 5 & 12. In his view, however, the moral force of the capacity principle is itself parasitic on the more basic sense in which criminal law expresses a judgment of the character displayed in an agent’s conduct. Nonetheless, I think it could be argued that a vision of humans as, under normal conditions of agency, in some sense capacity-responsible for their beliefs, desires and dispositions does underlie Tadros’s account.
For Tadros, actions which are ‘out of character’ may nevertheless be objects of responsibility, on the basis that D showed a culpable failure to resist, hence accepting, a vicious disposition.
Tadros (2005, pp 23–43). An agent acts, on Tadros’s view, qua agent, when he or she is motivated by reasons which cohere with his or her more general set of values and dispositions.
R v Caldwell (1981) 73 Criminal Appeal Reports 13.
Duff, ibid., pp.155–173. The gradual transformation of the presumption that a defendant intends the natural consequences of his or her actions from legal to merely evidential status through the course of the nineteenth and early twentieth centuries might be regarded as a further example of a shifting practice of character-based responsibilisation at the level of legal doctrine: see Lacey (2001a).
R v Satnam (1984) 78 Criminal Appeal Reports 149.
Criminal Justice Act 2003 ss. 98–101.
R v Kingston (1994) 3 WLR 519.
For a summary of the evidence in the UK, see Phillips and Bowling (2002, p. 579). See also Field and Roberts (2002), Hillyard, Pantazis, Tombs, and Gordon (2004), Home Office (2000), Lustgarten (2002) and MacPherson Report (1999).
See the essays by Elizabeth Kolsky, Wendy Schneider and Martin Wiener in Dubber and Farmer (forthcoming).
See for example Sex Offenders Act 1997, Sexual Offences Act 2003.
See for example the Anti-Terrorism, Crime and Security Act 2001, whose nationality based distinctions were later found by the House of Lords to be in violation of the Human Rights Act: A and others v Secretary of State for the Home Department  UKHL 5
As quoted in The New York Times Monday June 13th 2005 p. A14.
Crime and Disorder Act 1998; www.crimereduction.gov.uk/asbos5.htm; see Tim Newburn, ‘Young People, Crime and Youth Justice’, in Maguire et al. (ed.) The Oxford Handbook of Criminology pp. 531–578 at pp. 563–564; and Ken Pease, ‘Crime Reduction’, in Maguire et al. pp. 947–979 at pp. 969–970; Ramsay (2004).
Dubber (2005). In Part III of his book, Dubber moves towards the development of a theory of ‘substantive due process’ which might have the capacity to confine and rationalize the police power within a framework appropriate to a modern constitutional democracy.
For a persuasive analysis of the dangers of disguising the inevitably evaluative dimension of responsibility attributions, see Nourse (2002).
See Zedner, ‘Victims’, in Maguire, Morgan and Reiner (eds.) The Oxford Handbook of Criminology op. cit.
John Major, in a speech delivered in 1993.