The Structure of Criminal Liability: Complicity

2016

For more than thirty years the English law established that whenever two defendants had a common intention to commit a particular crime, but one of them committed another crime, the other party was criminally liable for the acts by the primary offender if he had foreseen the possibility that he might have acted as he did. The principle was based on the equation between foresight and intent. The recent decision of the UK Supreme Court in the joint cases Jogee and Ruddock changes the law, by restating the older principle according to which the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. Foresight is not equivalent to authorisation. This decision has the effect of bringing the mental element of the secondary party back into broad parity with what is required of the principal and of narrowing the scope of criminal law. It can also stimulate Italian lawyers and law-makers to start a thorough rethinking of the law ...

Criminal Responsibility and Partial Excuses, 1998

An introduction to the theory of justification and excuse in the criminal law.

SSRN Electronic Journal, 2014

There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention for the underlying crime to succeed while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime-the so-called "derivative approach." However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This Article develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than the existing approaches do. Moreover, it demonstrates that certain reforms to the current legal regime are warranted. Most importantly, the law should recognize that complicity comes in degrees. While reforms of this sort have been previously proposed for reasons relating to causation, this Article argues that different levels of complicity must also be recognized on independent mens rea grounds.

Concise version of Criminal Law I Syllabus 1. Actus Reus & Mens rea 2. Doctrine of Transferred Malice 3. Coincidence of AR and MR 4. Unlawful killings 5. Non-Fatal Offences 6. Defences

Criminal Law and Philosophy , 2016

Intentions are seemingly ubiquitous in the criminal law. Their presence can turn reckless homicide into first-degree murder, reckless endangerment into attempted murder, violation of a security clearance into treason, and inadvertent mistake of fact into perjury. But should intentions play the pivotal role that they do in determining the categorization of crimes?

Michigan Law Review, 2012

The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources—recent laws from state legislatures and recent advances in moral philosophy—pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral framework that both accommodates recent thinking in philosophy and preserves the correspondence between moral theory and criminal law that underwrites the presumption against criminal strict liability.Finally, it considers how the contours of this moral framework could inform judicial efforts to accommodate and constrain new criminal strict liability laws.

Res Publica, 2009

Journal of Law and Politics, 2007

This paper examines the issue of excusing in law from two different theoretical standpoints: the character theory and the choice theory of responsibility. The two theories differ on the kinds of causes of action they each find to provide the basis for holding people responsible. The character theory focuses on character, the choice theory on choice and the capacity to choose. It is argued that the character theory of responsibility, by drawing attention to what lies behind and motivates actual choices, offers a better basis for interpreting the moral significance of human actions and for explaining our actual blaming judgements with regard to those actions.

I argue that the criminal law operates in distinct temporal stages, and that concept of culpability operates differently at these stages. At its initial stage, the criminal law provides advance conduct guidance to the general public on how to avoid criminality, and at this stage, culpability helps define conduct that, if performed, would prima facie be criminal. After prima facie criminal conduct occurs, the criminal law evaluates the criminality of the agent responsible. At this stage, culpability identifies blameworthy agents. I argue that it does so by reference to the conduct guidance previously offered by the criminal law, and demonstrate that this account of criminal culpability after the act explains the criminality of almost all instances of criminal wrong causation. I argue that it is fair, and not implausibly revisionist, to reject the few instances of hitherto criminal wrong causation that are not explained by this theory of culpability.

2017

The concept of ‘prior fault’ presents a number of significant challenges for the criminal law. The focus of criminal law (offences and defences) is necessarily event specific; we target and assess liability in relation to a snap-shot moment in time or a short series of acts, not as a judgement of prior or more general culpability or character. Therefore, prior fault should be largely an irrelevance at the liability stage. However, remaining faithful to this narrow focus in all circumstances would lead to considerable unfairness, creating an opportunity for defendants to manipulate legal rules to their own advantage. Some of the clearest examples of this arise in so-called contrived defence cases. Let’s take the example of self-defence, a general and complete defence where the defendant’s (D’s) use of force against the victim (V) is both necessary and reasonably proportionate. The standard operation of this defence is largely uncontroversial; people should be empowered to defend themselves from unlawful attack. However, what if D manufactures the circumstances of that ‘attack’ in order to use the law of self-defence to ‘justify’ her pre-planned use of force against V. For example, D wants to kill V. D hands V a knife and then goads V continuously until V (as anticipated) lashes out at D. D shoots and kills V in self-defence. In order to understand and analyse examples such as the one above, we must distinguish two points in time within each potential criminal event. First, and standardly, we must look at the time where the potential criminal offence is committed (T2), asking whether the elements of the potential offence are completed, and if so, whether the elements of a potential defence can be found. In our example above, it is likely that the offence of murder was committed by D, but D would also be able to raise self-defence because of the attack from V. Secondly, we must look at D’s conduct prior to the potential crime (T1), to ask if D has done anything to undermine her future use of a defence at T2. In our example, this could be D’s prior fault in planning, and in manipulating V, in order to create the circumstances of her own defence. It is at this second stage, looking back to T1, that legal rules relating to prior fault must be identified and applied. Issues of prior fault are (potentially) relevant across every criminal defence, and this has given rise to a variety of legal rules designed to prevent the application of contrived defences. However, the legal rules relating to prior fault are often unclear and inconsistent between different defences. Basic questions about what D must have done at T1, what she must have intended, and how this can impact liability at T2, all require investigation. In this article, we provide such an investigation. In Part 1 we explore the application of legal rules relating to prior fault within the current law, exposing areas of inconsistency and incoherence. Part 2 discusses the academic response to this inconsistency, including different models of prior fault that have been recommended in an effort to bring coherence to this area of law. Finally, in Part 3, building upon the academic analysis, we set out our own model of legal rules relating to prior fault; a model that we believe can (and should) be applied across all criminal defences. It is contended that the issue of prior fault can be addressed consistently, and that such rules should form part of any codification project.

My Life in Crime and Other Academic Adventures, 2007

In a paper delivered to the Statute Law Society in October, 1983 1 I explained what the codification team was trying to do and how it was trying to do it. Since then, our report to the Law Commission has been published 2 and a substantial number of comments on the proposals have been received. Some are favourable, some are critical. Today I propose to respond to some of the criticisms, not of matters of detail, but of the general principle of codification. I shall be expressing only my personal views which are not necessarily those of my colleagues, still less of the Law Commission. It has been suggested that the supporters of codification believe in it for its own sake. I do not. Throughout my career I have always taught the law of contract as well as criminal law; but I never had any enthusiasm for the Commission's proposal, now abandoned, to codifY the law of contract. I did not support it because I could see no practical advantage in it. The law of contract appears to me to be a generally consistent, coherent and logical system. It has broad general principles which are readily applicable to a wide variety of situations and adaptable to changing circumstances. The criminal law is entirely different. It is incoherent and inconsistent. State almost any general principle and you find one or more leading cases which contradict it. It is littered with distinctions which have no basis in reason but are mere historical accidents. I am in favour of codification of the criminal law because I see no other way of reducing a chaotic system to order, of eliminating irrational distinctions and of making the law reasonably comprehensible, accessible and certain. These are all practical objects. Irrational distinctions mean injustice. A is treated differently from B when there is no rational ground for treating him differently; and that .is not justice. The Code and law reform The draft code is not a mere restatement of the present law. With the concurrence of the Law Commission, we incorporated a number of proposals for reform, in

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity btween criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter.

Law and Philosophy, 1996

Philosophia-international Journal of Philosophy, 2019