PARTIAL EXCUSES IN THE CRIMINAL LAW
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02492.x |
| Author | Martin Wasik |
| Date | 01 September 1982 |
| Published date | 01 September 1982 |
PARTIAL
EXCUSES
IN
THE
CRIMINAL
LAW
IN
recent years there has been considerable interest in theories of
excuse within the criminal law. These discussions have often centred
on efforts to formulate
a
theory of excuse which would account
satisfactorily for the range of currently accepted
excusing conditions
in the criminal law.' To some extent, the writers' almost exclusive
attention to excusing conditions
(i.e.
those excuses which operate
to relieve
a
defendant
of
criminal liability entirely such as insanity,
automatism or duress) reflects the important practical and pro-
cedural divisions which exist between the substantive criminal law
on the one hand and the discretions of prosecution, sentencer and
Parole Board on the other. Yet excuses can operate, formally or
informally, at these other levels too.2 Crucially, most writers appear
to assume
a
clear distinction between excusing conditions and
mitigating excuses (ix.
those excuses taken into account by way
of sentencing discretion, such as mistake of law which does not
negative
mens rea,
most cases involving the defendant's good
motive for breaking the criminal law, or provocation in crimes other
than murder). The basis for this assumption is rarely articulated,
and when it is, it seems unconvincing. Those writers who urge or
assume
a
sharp distinction between excusing conditions and miti-
gating excuses are faced with something of a problem by the
existence of
"
partial excuses
"
in the criminal law. Partial excuses
fit into neither group. Although they do not operate to relieve the
defendant of criminal responsibility entirely, they are taken into
account by the jury, prior to the verdict. They affect sentence,
sometimes drastically, but they also have the important characteris-
tic effect of changing the category of offence with which the defen-
dant is ultimately convicted. In English law the two leading partial
excuses are provocation and diminished respon~ibility.~ Typically,
the writers strive to force partial excuses into one or other of their
groups, usually that of mitigating excuse. One such response is that
of Professor Hart
4:
"
Sometimes, however, legal rules provide that the presence
of
a
mitigating factor shall always remove the offence into
a
separate category carrying
a
lower maximum penalty. This is
'
formal
'
mitigation and the most prominent example of it is
provocation which in English law
is
operative only in relation
1
Hart,
''
Legal Responsibility and Excuses
"
in
Punishment
and
Responsibility
(1968); Fletcher.
''
The
individualisation
of
excusing conditions
"
(1974) 47
S.Cal.L.Rev. 1269; Fletcher.
Rethinking Criminal
Law
(1978); Gross,
A
Theory
of
Criminal Justice
(1979); FJngarette and Hasse,
Mental Disabilities and Criminal
Responsibility
(1979).
2
Cj.
Glazebrook,
"The
Necessity Plea
in
English Criminal Law
"
[I9721 C.L.J.
87;
Wasik.
'I
Duress
and
Criminal Responsibility
"
[1977] Cr1m.L.R. 453.
3
See
below,
D.
521.
4
Hart (1968); p.
13.
516
Sept.
19821
PARTIAL
EXCUSES
IN
THE
CRIMINAL LAW
517
to homicide. Provocation is not
a
matter
of
justification or
excuse for it does not exclude conviction or punishment..
. .”
The aim of this article is to re-examine the concept of partial
excuse within the criminal law, particularly in the light of the
proposals of the Criminal Law Revision Committee in their Four-
teenth Rep~rt.~ The primary focus will, therefore, be on English
law, but some attention is given to developments elsewhere.
1.
THE
TRADITIONAL
OBJECTIONS
There are two principal objections which will be urged against
anyone who wishes to show that partial excuses can claim
a
legiti-
mate status in criminal law and a wider significance than is gener-
ally recognised. These objections must be dealt with here.
(i)
Partial
excuses
“
incoherent
”
The first objection is the apparently formidable one that the whole
notion of
“
partial excuse
”
is quite incoherent. In
a
Scottish case
Lord Justice-General Normand attacked the doctrine of diminished
responsibility in the following manner
s:
“
The defence of impaired
responsibility is somewhat inconsistent with the basic doctrine of
our criminal law that
a
man, if sane, is responsible for his acts,
and, if not sane, is not responsible.”
A
very similar point is put by
Sparks in
a
well-known article
’:
“
To say that we are less willing
to blame a man
if
he does something wrong surely does not mean
that we are willing to blame him less if he does something wrong.”
In one sense, of course, these statements ring true, since the essence
of the jury’s verdict is the determination of an issue in terms of
“
black
”
or
“
white
”:
guilty or not guilty. There is no third alter-
native. But the significance of this goes only
so
far. As Gordon
notesY8 if the word
“
responsible
”
in the first statement is replaced
by the phrase “liable to punishment,” with which it is strictly
synonymous, the plausibility of the statement tends to disappear.
This is surely because the new phrase reveals more clearly the
relationship which exists between legal and moral ascriptions of
responsibility in the context of serious criminal offences. In
moral responsibility there is certainly gradation in the efficacy of
various excuses, and
it
may be that some take
a
form akin to par-
tial excuse
e
“. . .
because it always has to be remembered that few
excuses get us out of it completely; the average excuse, in
a
poor
situation, gets us only out of the fire into the frying pan.
. .
,”
Then, the full scheme suggested by the two critical statements
must be sketched out. When
a
jury returns
a
verdict on
a
criminal
6
Oflences
Against
the Person
(1980); hereafter cited as C.L.R.C., 14th Report.
6
Kirkwood
v.
H.M.
Advocate,
1939 J.C. 36.40.
7
Sparks,
“
Diminished Responsibility in Theory and Practice
”
(1964) 27 M.L.R.
9. 13.
8
Gordon,
Criminal
Low
of
Scotland
(2nd ed., 1978),
p.
381.
9
Austin.
‘’
A
Plea
for
Excuses’’ In
The
Philosophy
of
Action
(White
ed.,
1968)
pp.
19. 25.
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