Culpability, Kingston and the Law Commission
| Author | Cath Crosby |
| Published date | 01 October 2010 |
| Date | 01 October 2010 |
| DOI | http://doi.org/10.1350/jcla.2010.74.5.658 |
| Subject Matter | Article |
Culpability, Kingston and the
Law Commission
Cath Crosby*
Abstract This article considers the basis upon which a person should be
held to be criminally liable, and to do so, it is necessary to examine the
leading theories of character and choice that underpin the State holding a
person to be culpable of a criminal offence, i.e. the link between culpabil-
ity and fault. The case of R v Kingston1is used to examine the application
of these leading theories and it is observed that choice theorists would not
excuse such a defendant from criminal liability even though his capacity
to make a choice to refrain from law breaking was made extremely
difficult by external factors beyond his control. Only character theory
could possibly offer exculpation in such circumstances on the basis that
the defendant acted ‘out of character’ and his deed did not deserve the full
censure and punishment of the criminal law. The Court of Appeal in R v
Kingston would have been prepared to excuse, but the House of Lords, and
most recently the Law Commission have adopted a pragmatic approach to
the involuntarily intoxicated offender. This case serves as a reminder that
while justice is the aim of the criminal justice system, it is not an absolute
standard.
Keywords Culpability; Choice; Character; Intoxication; R v
Kingston
Culpability is often referred to as a requirement for moral blameworthi-
ness, but there is uncertainty as to what is meant by the use of the word
‘moral’ in this context. Although traditionally there were few criminal
offences and all were easily recognisable as morally wrongful conduct in
themselves, for example rape, murder and theft, the number of criminal
offences now exceeds 8,0002and most of these are regulatory offences,3
which are often morally neutral. From this it would appear that criminal
culpability can now arise without conduct being judged as morally
wrongful per se and without requiring moral blameworthiness to be
shown even for more serious offences.4This stance has been a fairly
recent legal development as in 1990 it was acknowledged that:
while utilitarian theorists do not insist on any necessary link between
criminal liability and moral culpability, they do assume that the law’s moral
* Senior Lecturer, Teesside University; e-mail: C.Crosby@tees.ac.uk. I am grateful to
my colleagues Mike Bowen and Helen Howard for comments on a draft of this
article. Any errors remain my own.
1 [1995] 2 AC 355.
2 A. Ashworth, ‘Is the Criminal Law a Lost Cause’ (2000) 116 LQR 225.
3 Gardner makes the point that such offences govern our specific activities in
relation to the roles we assume, such as motorist, parent, shopkeeper, etc.:
J. Gardner, Offences and Defences Selected Essays in the Philosophy of Criminal Law
(Oxford University Press: Oxford, 2007) ch. 6.
4 G. R. Sullivan notes that in R v Kingston [1995] 2 AC 355, Lord Mustill’s view was
that ‘conviction for a serious offence need not entail descriptively or prescriptively
that the defendant was in any sense at fault’, in ‘Making Excuses’ in A. P. Simester
and A. T. H. Smith (eds), Harm & Culpability (Clarendon Press: Oxford, 1996) 134.
434 The Journal of Criminal Law (2010) 74 JCL 434–471
doi:10.1350/jcla.2010.74.5.658
responsibility requirement will reassure the public that the criminal actor
deserves moral blame when he is convicted of a serious non-regulatory
offense.5
Three general theories of blame and excuses have been identified6
which have been attributed mainly to Bentham,7Kant8and Hume.9
Bentham’s utilitarian rationale for excuses was that punishment of the
individual by the State would not act as a deterrent in the circumstances
where the excuses are allowed. For example, when acting under duress,
the threat of criminal liability is subsumed by considerations that are
temporarily more important to the actor. This approach has been re-
jected by some10 upon the ground that punishment can act as a general
deterrence rather than at an individual level. Kant11 also rejected any
form of utilitarian theory as it conflicted with his own theory founded
on the rights of the individual.12 As such, any approach based upon the
greatest happiness of the greatest number has to be dismissed no matter
how much overall good Bentham’s theory would produce. Judicial
punishment could never be justified solely as a way of advancing some
other good for the criminal himself or for society at large, but only on the
basis that a person had committed a crime.
He must be deserving of punishment before any consideration is given to
the utility of this punishment for himself or his fellow citizens. The law
concerning punishment is a categorical imperative, and woe to him who
rummages around in the winding path of a theory of happiness . . . in
keeping with the Pharisaic motto ‘It is better that one man should die than
that the whole people should perish’.13
Two leading theories of culpability
The modern predominant theories are based upon Kantian theory: that
people should not be punished if they could not have avoided doing a
criminal act; and Humean14 or Aristotelian theory,15 based upon the
5 P. Arenella, ‘Character, Choice and Moral Agency: the Relevance of Character to
Our Moral Culpability Judgments’ (1990) 7 Social Philosophy and Policy 59 at 63.
6 M. D. Bayles, ‘Character, Purpose, and Criminal Responsibility’ (1982) 1 Law and
Philosophy 5.
7 J. Bentham, An Introduction to the Principles of Morals and Legislation (Hafner: New
York, 1948).
8 I. Kant, The Metaphysical Elements of Justice: Part 1 of the Metaphysics of Morals (Bobbs-
Merrill: Indianapolis, 1965).
9 D. Hume, Treatise of Human Nature, L. A. Selby-Bigge (ed.) (Clarendon Press:
Oxford, 1888).
10 For example Bayles, above n. 6 at 5.
11 Kant, above n. 8 at xi.
12 Bayles, above n. 6 at 5.
13 Kant, above n. 8 at 101.
14 Bayles, above n. 6, who attributes character theory to David Hume’s Treatise of
Human Nature, above n. 9.
15 Wilson credits the origin of character theory to Aristotle: W. Wilson, Central Issues
in Criminal Theory (Hart Publishing: Oxford, 2002) ch. 11.
Culpability, Kingston and the Law Commission
435
character traits of the individual. These are the two main theories of
excuses or culpability which claim to establish the proper basis of
criminal liability. They are both deemed to be subjective in nature in that
they do not focus on the actual impact of someone’s actions upon the
world, but instead focus either on the individual choices a person makes
or alternatively on a person’s character. However, character theory is to
an extent objective in that good/bad character is judged against an
external objective standard of what can be expected from a reasonable
person, whereas choice is focused on the individual’s reason and
belief.
Choice theory
‘Choice’ theory is an adaptation of Kantian retributivism16 and the
principle of desert underpinning justification for punishment. The es-
sence of Kant’s moral and political philosophy was the ‘dignity of
the individual’ whereby morality and law should only be founded on
the rights of individual man to autonomy. Choice is important because
of the need to respect autonomy and, on Kantian principles, a person
should only be criminally liable for harm that he is responsible and
culpable for bringing about. It is only matters which a person has control
over that he can be responsible for and it is only what he chooses to do
or cause to happen that he controls.17 This approach restricts influences
of chance and luck over which we have no control and which should be
irrelevant to culpability and criminal liability.18 On Kant’s view ‘it is no
business of the state or . . . of other individuals to try to make men
moral; only an individual can do that for himself’ as otherwise he would
lose his autonomy.19 He believed that each man was his own sovereign
moral legislator as ‘every man knows in his heart what is right and what
is wrong’.20 If this is correct, then it follows that if a person chooses to
break the law and he knows he is doing wrong, he is deserving of
punishment. To what extent it is true that each man knows what is right
and wrong is now more open to debate than it was in Kant’s time.21
Furthermore, the extent to which a person appreciates that something is
right or wrong may also have relevance to his responsibility and blame-
worthiness. Some choice theorists prefer the term ‘defiance’ to ‘choice’
suggesting that only those who consciously choose to act in defiance of
legal norms deserve punishment.22
16 ‘Only the law of retribution (jus talionis) can determine exactly the kind and
degree of punishment’, applying the ‘retributive principle of returning like for
like’: Kant, above n. 8 at 101.
17 R. A. Duff, Criminal Attempts (Clarendon Press: Oxford, 1996) ch. 6.
18 Ibid. at 148.
19 Kant, above n. 8 at x.
20 Ibid. at xi.
21 See, e.g., Arenella’s discussion on the capacity for moral responsiveness as a
prerequisite for criminal liability, discussed below.
22 J. Hampton, ‘Mens Rea’ (1990) 7 Social Philosophy and Policy 1.
The Journal of Criminal Law
436
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