barry mitchell

Barry Mitchell1

The Minimum Culpability for Criminal Homicide2

1. INTRODUCTION

Most jurisdictions throughout the world reflect variations in the moral culpability ofhomicides by formally recognizing separate offences, usually attracting different sen-tencing provisions. In England, this is done on the apparently well-founded assumptionthat the general public recognises that there is sufficient variation in the gravity of somehomicides to warrant such a distinction.3 A range of offence characteristics are usedto make the distinction. Differences in the cognitive elements are a common device,such that intentional killing is indicative of the more serious forms of homicide whereasreckless or negligent killings are less serious. Some jurisdictions refer to motive inoffence definitions: in Germany, for example, murder includes killing ‘to satisfy a sexualurge, from greed or from other base motives …’.4 A not dissimilar characteristic is seenin the so-called ‘felony-murder’ rule adopted by some states in the USA, by whichhomicides committed in the course of certain felonies such as rape, robbery, arsonetc. are automatically classed as particularly serious. Then again, the French Penal Coderegards the torturing of the victim or making the victim endure lengthy suffering asan aggravating factor.5

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1. Reader in Criminal Justice, Coventry University, England.2. This article is a fuller account of a paper given by the author at the Max-Planck-Institut für

Ausländisches und Internationales Strafrecht in May 2001.3. The Criminal Law Revision Committee, for example, thought that the abolition of the distinction

between murder and manslaughter would lead people to think that the law had been weakened andthat ‘the law no longer regarded the intentional taking of another’s life as being especially grave’;see Criminal Law Revision Committee,

Fourteenth Report: Offences against the Person (London 1980)Cmnd 7844, para. 15. Evidence of public support in England and Wales for separate homicide offencescan be found in B. Mitchell, ‘Public Perceptions of Homicide and Criminal Justice’, 38(3) BritishJournal of Criminology (1998) pp. 453–472.

4. See paragraph 211(2) of the German Penal Code. The French Penal Code includes among its crimesagainst humanity the systematic killing of a group of people for political, philosophical, racial orreligious motives (see Article 212-1). In slight contrast, English law makes no such reference in theoffence definitions, but some allowance is made for what are perceived as ‘good motives’ throughthe availability of defences such as self-defence, prevention of crime, and duress.

5. This is in line with the argument put forward by Andrew von Hirsch and Nils Jareborg that thegravity of any crime is determined by a combination of the (actual or threatened) harm and theoffender’s moral culpability; see their ‘Gauging Criminal Harm: A Living Standards Analysis’, 1 OxfordJournal of Legal Studies (1991) p. 1.

This article is concerned with the first of these characteristics, the killer’s moralculpability. In 1996, the English Law Commission recommended the abolition of onevariety of involuntary manslaughter, namely unlawful and dangerous act manslaughter,6

on the ground that there is insufficient moral blameworthiness for causing death –the defendant need not be aware of the risk of causing any personal harm at all; allthat is required is that a reasonable person would have foreseen the risk of doingsome (not serious) harm.7 This fundamental issue has also been the focus of muchcriticism in England of murder, conviction for which is possible if the killer intendedto seriously injure anyone; there is no need for an intention to kill or even an aware-ness of the risk of killing.8 However, before addressing that subject directly, it isnecessary to consider some fundamental theoretical issues which underpin the criminallaw generally and are not confined to homicide.

2. RELEVANT PRINCIPLES AND THEORIES OF RESPONSIBILITY

Even a relatively cursory glance at the criminal law of most jurisdictions, be theycommon law or civil code based, reveals a set of principles and offences which varyin their structure and nature. More specifically, they contain tests of legal liability whichdiffer in the sense that some are (at least apparently) subjective whereas others areobjective. The former are primarily concerned with assessing a person’s guilt by ref-erence to what (s)he was thinking or aware of, in contrast to the latter which focusnot on the accused but on what some hypothetical ‘reasonable person’ would havethought in the same circumstances. Yet some English lawyers such as Richard Tur havewarned against using the concepts of subjectivism and objectivism as indicators ofthe true nature of the tests of culpability.9 Each of them, it is claimed has its defectsand problems. But rather than examine these defects it is worth briefly looking moreclosely at what subjectivism and objectivism represent.

The traditional view is that subjectivism implies that a person should foresee harmif (s)he is to be properly convicted of an offence of causing that harm. Thus, I shouldonly be liable for a homicide offence if I intended or foresaw death as at least a possibleconsequence of my action. The assertion that a person ought to have foreseen harmwhich (s)he did not in fact foresee is prima facie objectivist, but that, it is submitted,would be a false interpretation. Where a person has the capacity to foresee harm butfails to exercise that capacity, the criticism that (s)he ought to have foreseen it is

The Minimum Culpability for Criminal Homicide

European Journal of Crime,194 2001 - 3 Criminal Law and Criminal Justice

6. In these cases the defendant must be committing a crime rather than a civil offence, but it may beonly a very minor crime. In practice, such defendants are usually committing some form of offenceagainst the person, but in law this type of manslaughter is not restricted to such crimes.

7. Law Commission, Legislating the Criminal Code: Involuntary Manslaughter (London 1996) Law ComNo. 237, especially paras. 5.14–5.16.

8. This point was specifically debated by the House of Lords in R. v. Cunningham [1982] AC 566.9. See R.H.S. Tur, ‘Subjectivism and Objectivism: Towards Synthesis’, in S. Shute, J. Gardner and J.

Horder, eds., Action and Value in Criminal Law (Oxford 1992) pp. 213–237. Tur refers to the increasingpopularity of subjectivism, certainly amongst English lawyers, in the latter part of the twentieth century,but there are signs of a more recent move away from it, as will be apparent from this article.

better regarded as subjectivist.10 The focus of the law’s attention is still on thedefendant and his/her characteristics: we are critical of the defendant because (s)heneglected to do something which (s)he was quite capable of doing; what the hypo-thetical reasonable individual would have foreseen in the same circumstances is whollyirrelevant.11 Interestingly, such a view tends to be seen as objectivist, especially bythose who have argued against subjectivism!

Pure objectivism ignores the accused’s personal characteristics and simply compareshim/her with the hypothetical reasonable person. This is illustrated by the way in whichthe English courts used to determine whether a person charged with murder had reactedreasonably to the provocation on which (s)he relied.12 However, the House of Lordsthen changed this by imposing what has often been described as a ‘subjective gloss’on the objective test which required the courts to consider how a ‘reasonable man… having the power of self-control of an ordinary person of the sex and age of theaccused, but in other respects sharing such of the accused’s characteristics as [thejury] think would affect the gravity of the provocation to him’.13 The late Lord Diplockclearly disliked the tendency amongst lawyers to describe legal tests as subjective orobjective,14 and further potential evidence in support is arguably found in the very recentHouse of Lords’ decision in Smith (Morgan James)15 where the majority effectivelyredefined the test as whether, taking into account whatever personal characteristicsthe jury decided were relevant, it was reasonable for the particular defendant to havereacted to the provocation as (s)he did. In sum, attaching labels to the law is likelyto be unhelpful. What is much more significant is determining the kind of approachthe law should adopt towards human behaviour and the way it should be judged.

The dominant philosophy on which many criminal or penal systems are based isthe capacity theory of responsibility, the current understanding of which owes muchto the writings of Professor Hart.16 Whatever the merits of determinism, the criminallaw is based on the assumption that the vast majority of people have the ability tochoose whether to conform their behaviour to the law’s expectations. In accordancewith this, Hart’s view was that provided a person has the capacity to freely choose –to exercise free will – and has a fair opportunity to comply with the law, the legalsystem is justified in holding that person responsible for what (s)he has done. Thecapacity theory of responsibility is clearly consistent with what has been widely referredto as a subjectivist approach to liability, and it is also in keeping with the principleof individual autonomy, but its one obvious drawback is the lack of scientific data to


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10. This argument is not particularly novel or even radical. It has been asserted by leading criminal lawyers;see, for example, A. Ashworth, Principles of Criminal Law (Oxford 1999), 3rd edition, p. 198.

11. Indeed, the defendant might, of course, possess a characteristic which gives him/her a capacity toperceive a risk of harm which the hypothetical reasonable individual would not have been able torecognise.

12. This was the old law under the rule in Bedder v. DPP [1954] 1 WLR 1119.13. See DPP v. Camplin [1978] AC 705 at 712.14. See especially R. v. Caldwell [1982] AC 341 at 353, where Lord Diplock commented that that

‘questions of criminal liability are seldom solved by simply asking whether the test is subjective orobjective’.

15. [2000] 3 W.L.R. 654. The leading speech for the majority was delivered by Lord Hoffman.16. See H.L.A. Hart, Punishment and Responsibility (Oxford 1968); and ‘Varieties of Responsibility’,

83 Law Quarterly Review (1967) p. 346.

enable us to make a confident assessment of any individual’s capacity to exercisethe self-control presumed by the law. It is true that some progress is being made onthis issue, but it is slow and there is an enormous amount of work which remains tobe done.17

Sadly, those who advocate an objectivist approach to liability tend to either ignorecapacity altogether or reveal some muddled thinking about it. Thus, for example, inrelation to excuses, Professor Gardner appears to rely on a singularly simplistic viewof capacity according to which a person who has the capacity to behave in a partic-ular way in the circumstances will behave in that way; if (s)he does not, then therecan be no capacity to do otherwise.18 Admittedly, he makes these claims in the contextof discussing self-defence, more specifically the use of excessive force in self-defenceand the desire for soldiers to be courageous,19 and subsequently considering therelationship between capacity and fitness to fulfil certain roles in life. The only otherreference he makes to capacity is to those who, through no fault of their own, are sounfit to fulfil their roles that they bear no responsibility for their actions. It is, ofcourse, arguable that very little of this is relevant to the question of foresight of theconsequences of our behaviour, but there is a conspicuous absence of any attempt toaddress the scientific data available. Had he done so, he would have appreciated that,regardless of the need for much more research in the area, we cannot assume that



17. Nevertheless, there is evidence of a link between violence and genetic make-up (see H.G. Brunner,M.R. Nelen, P. van Zandvoort, N.G.G.M. Abeling, A.H. van Gennip, E.C. Wolters, M.A. Kuiper,H.H. Ropers and B.A. van Oost, ‘X-Linked Borderline Mental Retardation with Prominent BehavioralDisturbance: Phenotype, Genetic Localization, and Evidence for Disturbed Monoamine Metabolism’,52 American Journal of Human Genetics (1993) pp. 1032–1039; and evidence that violence is alsoassociated with low levels of the neuro-transmitter serotonin (see M. Virkkunen, J. Dejong, J. Bartkko,F.K. Goodwin and M. Linnoila, ‘Relationship of Psychobiological Variables to Recidivism in ViolentOffenders and Impulsive Fire-setters’, 46 Archives of General Psychiatry (1989) pp. 600–603. Currentdominant thinking in clinical psychology stresses the importance of inhibited or distorted cognitiveprocesses in emotional arousal; see, for example, R.W. Novaco, ‘Remediating anger and aggressionwith violent offenders’, 2 Legal and Criminological Psychology (1997) pp. 77–88.

18. J. Gardner, ‘The Gist of Excuses’, 1 Buffalo Criminal Law Review (1998) p. 575 at pp. 580–585.19. Professor Gardner reveals the simplicity of his view of human capacity when he asserts ‘[i]f one

sees the world through genuinely courageous eyes one does not see the danger to oneself the waythat more cowardly people see it, as a threat, but rather as a challenge, something which, up to apoint, one inclines towards rather than away from’, J. Gardner, loc. cit., p. 582. The truth is that wesimply do not fully understand why some people are braver than others. Moreover, people maybehave courageously when faced with a particular set of circumstances simply because at the criticalmoment they focused more on the need to (seek to) prevent some other harm than on the danger tohimself. We do not know how far they focus on the harm to others rather than themselves is a matterof chance rather than a manifestation of some aspect of their personality which enables them to bebrave. Another person may, on that occasion have focused instead on the danger to himself, but ona subsequent occasion would have shown the same degree of fortitude as the courageous person.The second person does not necessarily have a lesser capacity for being courageous. Moreover, manyincidents which reveal courageous acts occur, like the case of Clegg [1995] 1 All ER 334 on whichProfessor Gardner’s discussion is loosely based, in a matter of seconds. Whether on that specificoccasion the individual focused on the danger to others rather than himself cannot be treated asconclusive evidence of his capacity. The second, seemingly more cowardly person may have shownmore courage had he been given more time in which to assess the situation and appreciate the dangerto others. Human behaviour is surely not as ‘black or white’ as Professor Gardner implies.

what we do and what we think on any specific occasion necessarily manifests ourability. We may certainly have the ability to foresee a risk even though we fail toexercise it. Quite how we behave in a particular instance almost certainly dependson a combination of factors and influences which fluctuate over time. Our ability toreveal virtuous or desirable characteristics may well vary according to what has beenhappening in our lives at that time. It is not uncommon to find that crimes arecommitted, including homicides, after the offenders have endured not one or two buta series of personal traumas or very serious difficulties.20 The possibility that someof these offences would not have occurred but for those traumas or difficulties shouldnot be lightly dismissed.

Professor Gardner also states that people may have the capacity to learn to bemore courageous or to acquire skills which enable them to behave in a more sociallydesirable manner.21 This is surely correct, as far as it goes, but we should distinguishbetween the various factors which appear to influence our behaviour. Obviously, thenormal process of maturation normally brings with it an increased ability and knowl-edge which enables us to cope better with a wider range of circumstances. Thenagain, an encouraging illustration of the sort of thing that Professor Gardner mayhave in mind is the work of psychiatrists and clinical psychologists in helping someaggressive offenders to learn to exercise greater self-control and manage their angerso as to avoid reacting with violence.22 Yet it is almost certainly true that some behav-ioural influences, such as genetic make-up, effectively negate the possibility ofdeveloping these skills or, at the very least, severely curtail it. Clearly, this is not theplace to rehearse the nature-nurture debate, but there can be no doubt that ourpsychological and medical characteristics – our ‘bricks and mortar’ – limit our capacityto change our behaviour.

The major alternative theory is the character theory which bases responsibility ‘uponjudgments about the character of the agent: actions for which we hold a person fullyresponsible are those in which his/her usual character is centrally expressed’.23 Thus,for example, a person who acts under duress is not exhibiting his/her usual characterand since (s)he has been forced24 to behave in a particular way we do not prima facieregard his/her character as flawed. Recently, Professor Lacey has suggested a varia-



20. This became apparent, for example, during my analysis of a sample of cases in which patients whohad killed were psychiatrically assessed for the purposes of a diminished responsibility plea (see B.Mitchell, ‘Diminished Responsibility Manslaughter’, 8 Journal of Forensic Psychiatry (1997) pp.101–117, and from discussions with forensic psychiatrists who had assessed similar patients (see B.Mitchell, ‘Puting Diminished Responsibility Law into Practice: A Forensic Psychiatric Perspective’,8 Journal of Forensic Psychiatry (1997) pp. 620–626.

21. J. Gardner, loc. cit., p. 583.22. See, for example, A.P. Goldstein and H. Keller, Aggressive Behavior: Assessment and Intervention

(Elmsford, New York 1987).23. See N. Lacey, State Punishment: Political Principles and Community Values (London 1988) p. 66.

For an interesting critique of the character theory in relation to excuses see J. Gardner, loc. cit.,pp. 575–579.

24. In the sense that, whilst the individual knows what (s)he is doing and prima facie intends to do it,the threat/duress means that the behaviour is morally involuntary.

tion on this, in the form of what she calls the ‘reasons’ approach.25 Both theorieseffectively put the emphasis on the individual’s motive in that what is perceived as agood motive either tends to negate a flawed character or provide a justification forthe behaviour. Although, as indicated in the Introduction, some jurisdictions expresslyrefer to motive in offence definitions, English law has been very way about this.Admittedly it allows a limited number of good motives to provide a defence, but ittends to the view that there is sometimes no real consensus about what constitutes agood or bad motive, and even where there is some degree of superficial consensus,it may be unclear whether there is sufficient sympathy for an apparently good motiveto warrant an acquittal or whether instead it should merely be treated as mitigationof sentence. Furthermore, identifying a satisfactory definition of a good motive issometimes seen as very problematic, and there is the additional fear that such amotive would be open to exploitation. An obvious example of all these concerns ismercy killing or killing out of a sense of compassion.

Thus, whilst there is an obvious objection to the capacity theory, there are majordoubts that the alternatives are preferable. If, for the sake of the argument, we acceptthat a person might be held responsible and liable to conviction even though (s)helacked the capacity to conform to the law, what would be the rationale behind it?The only apparent possibility is some notion of ‘overriding public good’, but that wouldsuggest that gross injustice could be done to a person who, through no fault of his/herown, lacked capacity but was nonetheless to be punished severely. Individual moralculpability would become irrelevant. Such an approach would surely be unaccept-able in most, if not all, jurisdictions.26

Furthermore, the capacity theory sits comfortably alongside desert theory which isa key feature of penal policy throughout the western hemisphere. In the light of whathas been argued in this section of the article, it is worth persevering with the conceptof subjectivism as interpreted here. Aside from the scope of definition, subjectivismhas been attacked on various fronts, one of which is the alleged problem caused bythe often inescapable element of luck. In this respect, it would be unwise to advocatea purely subjectivist approach since that would ultimately confine the law’s censureto what we try to do.27 Of course we frequently lack total control over the outcomesof our behaviour, but we still retain a good measure of control. Moreover, there isevidence that outcomes are seen as important to the public28 and, if only for that reason,



25. N. Lacey, ‘Partial Defences to Homicide: Questions of Power and Principle in Imperfect and LessImperfect Worlds …’, in A. Ashworth and B. Mitchell, eds., Rethinking English Homicide Law (Oxford2000) pp. 117–119.

26. In England, for example, there was considerable criticism of the decision of the Divisional Court inElliott v. C (a minor) [1983] that an educational subnormal girl of 14 years should be convicted ofreckless arson when she set fire to a garden shed even though her subnormality prevented her frombeing able to recognise the risk caused by dropping lighted matches into white spirit; see S. Fieldand M. Lynn, ‘Capacity, Recklessness aund the House of Lords’, Criminal Law Review (1993)p. 127.

27. This is not the place to rehearse the arguments in detail. Interested readers can find a full account ofthe jurisprudential arguments surrounding this, issue in the following three essays; J. Hornsby, ‘OneWhat’s Done Intentionally’; R.A. Duff, ‘Acting, Trying, and Criminal Liability’; and A. Ashworth,‘Taking the Consequences’, all in S. Shute, J. Gardner and J. Horder, eds., op. cit.

28. See, for example, B. Mitchell (1998), loc. cit.

to the judiciary,29 As Professor Clarkson reminded us ‘[i]f no distinction were drawnbetween causing harm and not causing harm (in, say, attempt), the message commu-nicated would be that the causing of harm was of no moral significance when clearlyin terms of social and legal responses, it is of significance … . The causing of harmarouses extra bitterness and resentment in victims, relatives, and society. The causersof harm feel extra guilt and remorse.’30

Pursuing a (‘non-purist’) subjectivist approach would lead us at some point toconsider the implications of the principle of correspondence; i.e. the principle that aperson should only be liable for those consequence which (s)he intended or foresaw.As indicated earlier, to these might legitimately be added cases in which the defen-dant did not in fact foresee the harm which resulted but had the capacity to haveforeseen it. Quite apart from any objections which some readers may have that theselatter cases are truly consistent with a subjectivist approach, it must be acknowledgethat the correspondence principle has recently been attacked by some English criminallawyers.31 In particular, Dr. Horder argued firstly that the principle conflicts with theprinciple of personal autonomy. The argument is illustrated through a hypotheticalsituation in which D throws is brick at V, aware that it might strike and injure V.But Dr. Horder claims that because the outcome of D’s act of throwing the brick is ulti-mately a matter of chance – V might suddenly move in a different direction so thatthe brick misses him – the principle of autonomy is breached whilst the principle ofcorrespondence is in tact.32 But there are two objections to this argument. First, theexample used is more appropriately treated as an attempt to demonstrate thelimitations of the autonomy principle rather than to expose any weakness in the cor-respondence principle. Second, it is surely an overreaction to say that the autonomyprinciple has been breached: as suggested earlier, lack of complete control over theoutcomes of one’s actions does not negate autonomy entirely.

Opponents of the correspondence principle not surprisingly have offered varioushypothetical situations which they claim the potential absurdity or injustice it canproduce. In reply to my criticism of his critique of the principle, Dr. Horder, forexample, invites us to consider a scenario in which D shoots V, saying he honestlythought V was about to attack and rob him because V was a young black man andsuch people ‘do that sort of thing all the time’.33 Dr. Horder (rhetorically) asks whether



29. The comments of the former Lord Chief Justice, Lord Taylor in R v. Pettifer (1989) 11 Cr App R(S) p. 321 at p. 323 illustrate this.

30. C.M.V. Clarkson, ‘Context and Culpability in Involuntary Manslaughter: Principle or Instinct?’, inA. Ashworth and B. Mitchell, eds., op. cit., p. 159.

31. See especially J. Horder, ‘A Critique of the Principle of Correspondence in Criminal Law’, CriminalLaw Reviews [1995] pp. 759–770; B. Mitchell, ‘In Defence of a Principle of Correspondence’, CriminalLaw Reviews [1999] pp. 195–205; and J. Horder, ‘Questioning the Correspondence Principle’, CriminalLaw Reviews [1999] pp. 206–213.

32. J. Horder [1995], loc. cit., p. 760.33. J. Horder [1999], loc. cit., p. 207. It is somewhat ironic that Dr Horder immediately preceded this

scenario by remarking that most defendants ‘are not the wild eccentrics of examination hypotheti-cals, but are perfectly normal’! It is also interesting to note that at the same time he expresses apreference for defending what he calls a ‘moderate objectivism’ by which defendants ‘are judgedby the standards of self-control, courage, prescience and moral sensitivity possessed by ordinary

D should be judged by his own racist standards. In so doing, he misinterpreted ormisunderstood what I had argued. In this scenario the question whether D ‘has failedto do what could reasonably have been expected of him’34 should be addressed bylooking at the evidence (if any) that V was in any way threatening D. The fact thatV was young black man would obviously not per se constitute sufficient evidence tojustify pre-emptive violence. If there was no other evidence to support D’s claim,and if that claim was a genuine belief, then it is suggested that D should be treatedas mentally disordered in some way.35 A racist who encountered a young black manmight manifest his racism by provoking or attacking the black man, but a ‘mentallynormal’, even extreme racist would not argue that every time a young black manmeets him he would inevitably be robbed.

A further criticism of the correspondence principle made by Dr. Horder arisesfrom his contention that subjectivists have failed to fully appreciate what he callsthe ‘normative significance of intent’.36 Subjectivists, he feels, are inclined to be undulysympathetic towards defendants where the harm actually suffered extends beyondtheir mens rea. In many of these cases, according to Dr. Horder, the defendant oughtnot to be able to claim that the harm suffered was simply bad luck. Rather, where adefendant has intentionally sought to harm someone (s)he has effectively made his/herown luck; the intent to cause harm (albeit less than that which actually ensued) providesa moral culpability which, in some cases, ought to justify holding the defendant liablefor the harm suffered. At the same time, Dr. Horder recognises that this argument isopen to the objection that, as the English Law Commission concluded in relation tothe existing offence of unlawful and dangerous act manslaughter, there may a con-siderable gap between the defendant’s mens rea (i.e. his intention or foresight) andthe actual harm suffered by the victim. He therefore suggested that this gap shouldbe narrowed by requiring a ‘moral proximity’ between the tow elements.37 Howevermuch initial appeal this may have, it is itself vulnerable to the obvious criticism thatthe concept of ‘proximity’ is ambiguous; it has a vagueness which strongly suggeststhat the courts would construe it inconsistently. (Indeed, the English case law on themeaning of proximity for the purposes of criminal attempts prior to the Criminal



people …’. Like many opponents of subjectivism, Dr. Horder assumes that, excluding the youngand the mentally deficient, the variations between most people in their capacity for self-control, courage,prescience etc. are not significant, so that the concept of ‘how an ordinary person would havebehaved’ in any given circumstances can be assessed sensibly and easily. But although scientificresearch is still in its relatively early stages, the picture which is emerging suggests that personalcharacteristics, of which there are many, vary considerably; the concept of an ‘ordinary person’needs to be probably much more elastic than has traditionally been assumed.

34. B. Mitchell, [1999], loc. cit., p. 197.35. In this respect, I appear to differ from Dr. Horder; see J. Horder [1999], loc. cit., p. 207. Further, a

broadly similar response should be given to the scenario offered by Richard Tur in which Adonis,believing no woman could ever say ‘No’ to him, had sexual intercourse with a non-consentingwoman, misinterpreting her resistance and protests (see R.H.S. Tur, loc. cit., p. 220). Assuming Adonisreally did believe the woman was consenting and that he was so irresistible to women, the prefer-able manner of disposing of this scenario would be to treat Adonis as mentally deficient or abnormal.It should not be regarded as undermining the correspondence principle.

36. J. Horder [1995], loc. cit., pp. 763–764.37. J. Horder [1995], loc. cit., pp. 769–770.

Attempts Act 1981 provides a graphic warning of the likelihood of the inconsistencyand uncertainty that would ensue.)

One potential construction which might be placed on the moral proximity conceptis that it would be satisfied if the defendant’s intention or foresight encompassed a levelof harm which was just one grade below that which the victim actually incurred.38

This would provide some sort of rationale for the rule in English law that an intentto cause grievous bodily harm – commonly known as ‘the gbh rule’ suffices to renderthe defendant liable for causing death. Legal opinion appears to be divided on this rule.Retentionists argue that death is final and the difference between death and seriousharm may be small, and no-one can be sure whether death or serious harm will infact ensue – luck may play a part. Abolitionists, on the other hand, counter that notonly does the gbh rule breach the correspondence principle, but that there is no needfor it because of the availability of conviction for manslaughter. Moreover, the rulemay lead to absurd results – for example, the gbh intended may not be life-threat-ening, as where the intent is to break an arm, or the defendant may positively wantto victim to live, so as to suffer physical pain! The modest evidence availableindicates that the English public are instinctively hesitant about to gbh rule; they appearto want something in addition, such as either an awareness by the defendant of therisk of killing or possibly a prima facie objective requirement that the risk of killingbe apparent to any ordinary individual in the same circumstances.39

In his rejection of the Law Commission’s proposal to abolish the offence of unlawfuland dangerous act manslaughter, Professor Clarkson has quite recently argued thatthe offence should in fact be replaced by something he suggests might be called ‘killing…’ or ‘causing death by attack’.40 It is accepted that departure from the paradigmatichomicide, i.e. an intentional killing, requires careful justification, and ProfessorClarkson suggests that the context of the killing can provide it. He argues that wherethe killing takes place in a context of violence, where the defendant has chosen toengage in personal violence and risks injury (s)he ‘cannot complain when criminalliability is imposed in relation to injuries – even death – resulting from the attack.’41

Clearly, Professor Clarkson relies in part on Dr. Horder’s argument about the norma-tive significance of the defendant’s intent to cause harm but he makes no attempt todeal with the concern, which Dr. Horder at least addressed (if not terribly convinc-



38. In his criticism of the Law Commission’s proposals on non-fatal crimes against the person, Dr Horderhas suggested that English law should differentiate between different kinds of injury (e.g. between ‘say,maiming and blinding) so as to give the law some ‘moral nominalism’; see J. Horder, ‘Rethinking Non-fatal Offences against the Person’, 14 Oxford Journal of Legal Studies (1994) p. 335. Ironically, ifadopted this would almost inevitably make it very difficult to determine whether any one form ofsuch non-fatal injury came within the next grade of harm below death.

39. See B. Mitchell, ‘Further Evidence of the Relationship Between Legal and Public Opinion on theLaw of Homicide’, Criminal Law Review [2000], p. 814 at pp. 819, 820. Interestingly, at a confer-ence at Oriel College, Oxford, in January 2000 entitled ‘Rethinking English Homicide Law’, therewas considerable evidence of an instinctive dissatisfaction with the gbh rule, though opinions differedas to what reforms would be most appropriate!

40. C.M.V. Clarkson, loc. cit., pp. 156–164.41. C.M.V. Clarkson, loc. cit., p. 159. Professor Clarkson is here drawing on John Gardner’s work on

families of offences; see J. Gardner, ‘On the General Part of the Criminal Law’, in A. Duff, ed.Philosophy and the Criminal Law: Principle and Critique (Cambridge 1998) especially pp. 247–249.

ingly), about the gap between what was foreseen and what was caused. Indeed, he cites,by way of illustration of the kind of circumstances which would justify convictionfor killing by attack the case of Williams42 in which the defendant twice pushed andonce slapped a young woman, causing her to fall backwards, hitting her head on awall-mounted heater and damaging her neck. She died from those injuries. Althoughwe were reminded that the defendant had assaulted his victim, he had ‘set about her’,death was acknowledged as being ‘accidental’. The fact that Williams attacked herrather than simply quarreled with her does little to narrow the gap between his mensrea and her death; it is asking an awful lot of the normative significance of his intentto harm her.

Naturally, Professor Clarkson is right to point out that there is a moral differencebetween deliberately attacking the woman and merely arguing with her, but the useof the concept of ‘families of offences’ in this context does not seem very persua-sive.43 Moreover, his suggestion would may well mean that the defendants in DPP v.Newbury and Jones44 would not be guilty of killing by attack. There two 15-year-oldboys killed a railway guard when the pushed a paving stone from a bridge into thepath of a train on which he was traveling. They were in fact convicted of construc-tive manslaughter on the basis that they had committed an unlawful and dangerousact, but this act was causing criminal damage to property – not of the same familyof offences as homicide.45 In addition, surely a much more significant considerationis the question whether the death of any individual was likely to result from theiractions, whether or not those actions prima facie constituted a personal assault.

A subjectivist approach which incorporates the principle of correspondence wouldsuggest that a person who causes the death of another should be liable to convictionfor criminal homicide where there is either an intention to kill or foresight of thepossibility of killing. To these, as indicated earlier, the author would add cases wherethe killer did not advert to the risk of causing death but had the capacity to havedone so and failed to exercise that capacity. The principle of correspondence may seemalmost crude in its simplicity, but its indisputable appeal is its ability to provideprima facie evidence46 of the defendant’s choice to bring about a particular harm,and thereby merit conviction for a crime which reflects that harm. Dr. Horder’scriticism based on its alleged inconsistency with the principle of autonomy is bothan overreaction and a failure of appreciate the true nature of autonomy.



42. [1996] 2 Cr App R (S) 72.43. As some colleagues at the conference at Oxford in January 2000 remarked, relying on the families

argument to justify the gap in cases such as Williams between the mens rea and the outcome callsfor a very extended family!

44. [1977] AC 500.45. Perhaps mindful that commentators would probably wish to preserve the convictions in Newbury

and Jones for manslaughter, Professor Clarkson tentatively suggested they might instead be guilty ofkilling by gross carelessness, though the precise nature of this carelessness would require closeexamination.

46. The possibility that the choice may not have been sufficiently voluntary can, of course, be accom-modated in a defence such as duress or self-defence.

3. THE IMPORTANCE OF ATTITUDE, AND ESPECIALLY INDIFFERENCE

Most, if not all jurisdictions have adopted cognitive concepts such as intention, reck-lessness and negligence as indicators of mens rea and have incorporated them into theircategories of homicide.47 English criminal lawyers and jurists, though, have persistentlyhighlighted the inadequacies of these concepts in so far as they can ensure sufficientmoral culpability to justify conviction.48 Moreover, as Antony Duff has reminded us,the law should be concerned with person’s attitudes if and when they structure his/heractions. Attitudes can motivate or accompany a person’s choice and action, althoughthey do not necessarily evidence a person’s voluntary will.49 Indifference describes aperson’s attitude or feelings about the consequences or circumstances of his/herbehaviour rather than his/her aims, desires or awareness. It is therefore mutuallyexclusive from concepts of intention, recklessness and negligence but it is poten-tially consistent with each of them. A person may intend to kill, or may advertentlyor inadvertently risk killing, and simultaneously be indifferent whether death results.His or her indifference may be reflected in a lack of awareness of the possibility.50

Indifference also comes in varying degrees, in that a distinction can be made betweena person who knows there is a risk of harm but hopes it will not materialize, andone who has no such hopes. It cannot be said that the former did not care at all, but(s)he is still indifferent because (s)he did not care enough to have adopted a differentcourse of action. The hope that the risk would not materialize can be construed asno more than fairly weak mitigation. The situation becomes more complex, however,where the probability of the risk materializing varies. As Brady points out, ‘[a] personwho unjustifiably takes a high risk of harm hoping that the harm will not occur is judgedmore culpable than one who takes a lesser risk but does not care one way or theother … . In the former, the person who ‘hopes not’ is guilty of a higher degree ofindifference than the person who simply does not care about a likely risk.’51

It is only right to acknowledge that indifference as to causing death has been rejectedas a fault element on the ground that whilst denoting moral censure it is ultimatelyjust another form of subjective recklessness.52 The concept of ‘wicked indifference’was advocated by Robert Goff, partly on the basis of its apparently successful adoptionin Scots law,53 but it was rejected by the House of Lords Select Committee in 1989.54

Nevertheless, not only is there a very stark contrast between lawyers’ satisfaction



47. Not surprisingly, the precise meanings of these concepts varies between jurisdictions.48. Past editions of Criminal Law textbooks provide ample evidence of this. A succinct demonstration

of the inadequacies can be found in B. Mitchell, ‘Culpably Indifferent Murder’, 25 Anglo-AmericanLaw Review (1996) p. 64 at pp. 70–71. The English Law Commission reports have acknowledgemuch of the criticisms; see most recently Law Commission, Legislating the Criminal Code: OffencesAgainst the Person and General Principles Law Com No. 218 (London 1993), Part III.

49. A. Duff, Intention, Agency and Criminal Liability (Oxford 1990) pp. 155–162.50. A. Duff, op. cit., at pp. 162, 163.51. J.B. Brady, ‘Recklessness, Negligence, Indifference and Awareness’, 43 Modern Law Review (1980)

p. 381 at p. 388.52. G. Williams, ‘The Mens Rea for Murder: Leave it Alone’, 105 Law Quarterly Review (1989) p. 387

at p. 391.53. R. Goff, ‘The Mental Element in the Crime of Murder’, 104 Law Quarterly Review (1988) p. 30 at

pp. 52–58.

with wicked indifference north of the river Tweed and the reservations about it southof the river, but English courts have for some time used the concept of indifferencein specific areas of the substantive criminal law, namely reckless rape and indecentassault. Judges tended to construe it as a form of subjective recklessness. Thus, in DPPv. Morgan and others, arguing that the legal definition of rap should accord with itsordinary meaning in the English language, Lord Cross commented that ‘[r]ape, tomy mind, imports at least indifference to the woman’s consent … , to the questionwhether a man, who has intercourse with a woman believing on inadequate groundsthat she is consenting to it, though she is not, commits rape. I think that he would reply.“No. If he was grossly careless then he may deserve to be punished but not for rape.”’55

In addition, commenting on the case of Breckenridge, Professor Smith claimed that‘a person can hardly be said to be indifferent about a matter which has not crossedhis mind.’56 As indicated earlier, however, the better view is that indifference shouldnot be interpreted in this restricted fashion.

A more accurate construction of indifference by English courts is one which impliesthat the defendant ‘couldn’t care less’ about the consequences or circumstances ofhis actions. In Kimber, a case of indecent assault on a female patient in a mentalhospital, Lawton L.J. said of the accused, ‘[h]is own evidence showed that his attitudewas one of indifference to her feelings and wishes. This state of mind is aptly describedin the colloquial expression, “couldn’t care less”’.57 A similar notion of ‘not caring’was used in Venna, a (non-sexual) case of assault occasioning actual bodily harm, wherethe jury were directed that they could convict the defendant if he had lashed out ‘notcaring an iota as to whether he kicked somebody …’.58

Although indifference is potentially consistent with all traditional cognitive conceptsof mens rea, its significance is perhaps best illustrated in situations where thedefendant is not sure about the outcome of his/her actions. Here a distinction shouldbe made between what Ruimschotel describes as a mere ‘knowledge deficit’ as opposedto a ‘value deficit’.59 A person has a mere knowledge deficit if (s)he would haveadjusted his/her behaviour had (s)he known in advance what the outcome would be;60

whereas there is a value deficit if (s)he would not. The latter person placed no morevalue on the outcome of the action than the premeditative or intentional actor. In thecontext of homicide, the ‘value-deficit killer’ would have chosen to act in preciselythe same way that (s)he in fact did even if given advance warning that death wouldresult, and has therefore committed a crime which is the moral equivalent of the



54. House of Lords, Report of the Select Committee on Murder and Life Imprisonment HL Paper 78-1(London 1989) especially paras. 74–76.

55. [1975] 2 All ER 347 at 352.56. Criminal Law Review [1984] p. 174.57. (1983) 77 Cr App Rep 225 at 230.58. [1975] 3 All ER 788 at 792.59. D. Ruimschotel, ‘The Psychological Reality of Intentional and Negligent Criminal Acts’, in P. Van

Keppen, D.J. Hessing and G. van den Heuvel, eds., Lawyers on Psychology and Psychologists onLaw (1988) pp. 83–85, cited by C. Wells, Reforming the Lore of Murder (1990) unpublished paperpresented at the Willem Pompe Institute, University of Utrecht.

60. The defendant who knowingly takes a risk but hopes that it will not materialize is likely to haveacted differently if told in advance that it would in fact do so.

paradignamic case of murder. The ‘knowledge-deficit killer’, on the other hand, atlest has the more redeeming feature that (s)he would have refrained from killing.

4. INDIFFERENCE, COGNITION AND SUBJECTIVISM

Traditional subjectivism would obviously dictate that a value-deficit killer who eitherintended to kill or knowingly risked killing should be liable to conviction for criminalhomicide. Moreover, a value-deficit killer who lacked such intent or awareness should,regardless of the question of personal capacity, similarly be prima facie liable toconviction for homicide because the course of action (s)he took was the one (s)he wouldhave taken even if (s)he had advance information of the outcome, so that the prin-ciple of correspondence remains morally in tact. Yet this value-deficit indifference isnot per se sufficient to constitute the fault element in criminal homicide, for theremust always be evidence of moral blame in relation to the taking of a course ofaction which resulted in death. For example, take the case of a value-deficit killerwho was blamelessly unaware of the possibility of causing death. Assuming therewas no other unreasonable risk, such as causing lesser harm, (s)he has acted in thesame way as any ordinary reasonable individual would have acted in the same cir-cumstances. The mere fact that this person would not have adjusted his/her behaviourif given advance warning of the outcome should not be treated as an adequatesubstitute for the absence of any moral blame for taking the fatal course of action.61

A killer who intends to kill clearly merits conviction for murder (or whatever labelis attached to the most heinous category of criminal homicides), without the need toconsider whether (s)he was a value-deficit killer. Those who foresee that they mightkill but are not sure they will do so – they are subjectively reckless as to causingdeath – are also invariably liable for conviction, though the precise category into whichthey fall will vary between jurisdictions. Under current English law, such a personwould be guilty of manslaughter, but what if (s)he was also a value-deficit killer?Such a killer has chosen to take the risk of killing, and in cognitive terms the onlydifference between this person and one who intentionally kills is that the formerthinks death might occur whereas the latter thinks that it is inevitable. Each of themmay be mistaken, and the objective probability of killing may be greater in the caseof the subjectively reckless killer. The presence of a value deficit means that thedefendant would not have altered his/her behaviour even with advance knowledge ofthe outcome and thus bears the same moral blame as the intentional killer. Indeed,the latter may hope that (s)he is mistaken about the outcome, yet such a hope wouldnot affect liability for murder. There is, therefore, a strong argument that a combina-tion of awareness of the possibility of causing death together with a value deficit inrelation to killing should be regarded as meriting a conviction for murder.

Defendants who were unaware of the risk of killing may fall into varying categories.Some may never have considered the possibility at all; it simply never entered theirheads that they might kill. Others may have thought about it and either decided there



61. This is surely why Duff used the phrase ‘culpable practical indifference’ (emphasis added); see A.Duff, op. cit., p. 172.

was no such risk or they might have thought they had eliminated it by taking specificmeasures before they acted. Following the decision of the House of Lords in Caldwell,62

a person who never considers what was an objectively obvious risk is regarded asreckless, whereas those who considered the matter but wrongly concluded there wasno risk can be no more than negligent. Current English law recognises as one speciesof involuntary manslaughter the crime of gross negligence manslaughter. Gross neg-ligence is a notoriously elastic concept which encompasses those who wrongly thinkthere is no risk as well as those who have never considered the question. What mattersis that firstly a reasonable person in the same circumstances would have recognisedthe risk and would not have taken it, and secondly the standard of care displayed bythe defendant fell a long way short of what could reasonably have been expected.The only apparent limitation on gross negligence is that the defendant must haveowed a legal duty of care towards the victim.63

It was argued earlier that those who had the capacity to recognise the risk of killingbut failed to exercise it should be liable to conviction for manslaughter, but what shouldbe the effect of the additional presence of a value deficit as to causing death? Beforeattempting to answer this, it is important to recognise that capacity should also beapplied to value-deficit indifference. The defendant must be capable, in the sense ofhaving at least a latent awareness64 of the prevailing moral and political values abouthis/her conduct and especially the results of his behaviour. In homicide, this means(s)he must have been able to appreciate the value society places on human life,otherwise, as Professor Norrie warns, ‘[w]ithout that, the accused could not be expectedto recognise that his act reflected callousness’.65 Whether in cognitive terms such aninadvertent killer be classed as reckless or (grossly) negligent, it is difficult to counterthe argument that there is not the same degree of choosing to kill or voluntarilyrisking death as in the cases of intentional or subjectively reckless killers. The issuehere is where to draw the boundary between murder (the most heinous homicides)and the upper limit of manslaughter (or slightly less serious homicides). This cannotbe judged scientifically or objectively; it must be a matter of social and criminal/penalpolicy, and the author would treat such cases as ‘comparatively serious manslaughters’.

5. EVIDENTIAL ISSUES CONCERNING INDIFFERENCE

Reference has already been made to the fact that Scots law recognises a concept ofwicked indifference and there appears to be little or no evidence of dissatisfaction



62. [1982] AC 341.63. This is what is commonly treated as the correct interpretation of the House of Lords’ decision in

Adomako [1995] 1 AC 171, but the speeches in that case are less than entirely clear.64. I.e. in the sense that society’s moral and political values, especially the significance of causing death,

were ‘stored in the brain’ and could have been called on by the defendant; see, for example, thecomments of L.J. Eveleigh in Murphy [1980] QB 434 at 440 on latent awareness.

65. A. Norrie, Crime, Reason and History (London 1993) p. 76.66. S. 210.2(1)(b). These are illustrations of what has traditionally been the ‘felony-murder’ rule – cases

in which a defendant has killed another person in the course of committing one of a short list of(other) serious crimes such as rape, robbery, arson or burglary.

with it. Dutch law has, as one of its categories of intentional killing, cases where thedefendant is indifferent to the primary result of his/her action. The American ModelPenal Code includes as a species of murder reckless killings in which the defendantdisplays ‘extreme indifference to the value of human life’.66 Nevertheless, some lawyershave argued that there are considerable evidential difficulties in substantiating anallegation of indifference.67 But are these (theoretical) difficulties insurmountable? Doesindifference pose evidential problems which are significantly greater than cognitiveconcepts such as intention or recklessness which can only be judged – i.e. the jurymakes an informed guess, and the quality of the information may vary considerably!– by process of inference?

Again, we should recall Professor Duff’s observation that a person’s indifferencecan shape and be manifested in their behaviour.68 The jury might, for example, bedirected to consider whether there was any evidence to suggest the defendant didcare about the outcome of his/her action, or that (s)he hoped the risk would notmaterialise. Take a case such as Hyam69 in which the defendant set fire to a houseresulting in the deaths of two occupants. Did (s)he make any, even a cursory, attemptto see if there was anyone in the building before setting fire to it, or did (s)he believefrom previous knowledge of the building that it was likely to be occupied? Thiswould only constitute circumstantial evidence, but it would be more credible than abare unsubstantiated claim of hoping that no-one would be harmed. Premeditation mighthave similar circumstantial relevance. Although some jurisdictions do not includepremeditation as an element in criminal homicide because it is thought to be inca-pable of satisfactory definition, there clearly are cases in all jurisdictions in whichpremeditation is recognized and invariably treated as an aggravating factor when passingsentence.

Then again, the court’s assessment of the objective likelihood of death occurringmight shed light on the issue, and in particular, how obvious was the probability thatdeath would ensue and whether there was any evidence to suggest that the defendantmight (not) have been aware of it.70 A low probability of causing death might constitutecircumstantial evidence that the defendant had no more than a knowledge deficit andshould therefore be given the benefit of the doubt. But suppose a man sets fire to aderelict building which, as he knows, is very occasionally used by tramps, and oneof them is killed in the blaze. Prima facie, a court may conclude that the likelihoodof any serious harm was very low and that the defendant’s awareness of this shouldlimit his liability to manslaughter. Yet what if there was evidence that the defendanthated tramps and had admitted to the police that he would have acted in preciselythe same way if he had known that the building was occupied? Such callous indif-



67. See, for example, W. Wilson, ‘Murder and the Structure of Homicide’, in A. Ashworth and B. Mitchell,eds., op. cit., especially p. 31.

68. N. 48.69. [1975] AC 55.70. Although the point is not quite the same, it is worth recalling the following comment by Lord

Scarman in Hancock and Shankland [1986] 2 WLR 357 at 364 that ‘the greater the probability of aconsequence the more likely it is that the consequence was foreseen and that if that consequencewas foreseen the greater the probability is that that consequence was also intended.’

ference, coupled with the awareness of the (albeit low) risk of killing, surely justi-fies regarding the case as extremely serious – murder rather than manslaughter(?)

6. CONCLUSIONS

It has been argued that, whatever the label attached to it, the law should adopt anapproach to liability which places the legal spotlight firmly on the accused, on what(s)he intended or foresaw or was capable of foreseeing. This is consistent both withprevailing penal policies based on individual desert and with behavioural theories basedon personal autonomy. Traditional cognition-based concepts of mens rea are regardedas important but inadequate per se in ensuring the defendant’s moral culpability andresponsibility for the outcomes of his/her behaviour. Indifference can be construedso as to provide moral equivalence to intention and foresight, and a particularlycallous form of indifference – value-deficit indifference – has been advocated.

The early part of this article was especially concerned with concepts, theories andprinciples which underpin large sections of the criminal law. One potential problemwhen assessing and rethinking the homicide law is the inevitable emotionality of thesubject, but this merely obviates the need to devise a sound theoretical basis for thesubstantive law. Certainly, in some jurisdictions there is evidence that the mediaand/or the public too frequently regard conviction for a lesser homicide offence suchas manslaughter as little more than a consolation prize for the prosecution.71 The gapbetween the more serious and the lesser offences – such as murder and manslaughter– is perceived to be so great that anything other than a murder conviction implies injus-tice. Ironically, there is a strong argument that those laws which make it relativelyeasy for the court to convict for the lesser offences (such as unlawful and dangerousact manslaughter) are effectively abetting the misconception that such offences arenot really that serious.72 Only by ensuring adequate moral responsibility and culpabilityfor killing are we likely to redress this misconception.



71. See, for example, S. Smith, ‘Crime in the News’, 24 British Journal of Criminology (1984) p. 289;L. Barrile, ‘Television and Attitudes about Crime’, in R. Surette, ed., Justice and the Media (Springfield,Illinois 1984); R. Broadhurst and D. Indermaur, ‘Crime Seriousness Ratings: The Relationship ofInformation Accuracy and General Attitudes in Western Australia’, 15 Australian and New ZealandJournal of Criminology pp. 219–234; Canadian Sentencing Commission, Sentencing Reform: ACanadian Approach (Ottawa 1987); J.V. Roberts and A.N. Doob, ‘News Media Influences on PublicViews of Sentencing’, 14 Law and Human Behaviour, pp. 451–468; and J. Knowles, Ohio CitizenAttitudes Concerning Criminal Justice (Columbus, Ohio 1982).

72. The fair labeling implications – i.e. the principle that crimes should reflect the nature and gravity oftheir moral culpability – are all too obvious here.

barry mitchell

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