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Two Models of Criminal Fault

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Abstract

I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem concerns the over-breadth of recklessness as thus defined—that it covers agents whose actions display different kinds of culpability. The other problem concerns the importance attached to awareness of risk in distinguishing recklessness from (mere) negligence—that one who is unaware of the risk that he takes or creates sometimes displays just the same kind of fault as an advertent risk-taker. We can work towards solutions to these problems by contrasting the Anglo-American schema with the German schema: this distinguishes intention (Vorsatz, consisting in purpose, or knowledge, or ‘dolus eventualis’) from negligence (Fahrlässigkeit, which can be either advertent or inadvertent). Dolus eventualis, properly understood, constitutes a distinctive kind of fault, which should be distinguished from advertent negligence within the category of what the Anglo-American schema counts as recklessness: this helps to solve the first problem, of over-breadth. As for the second problem, we can see why the difference between advertent and inadvertent risk-taking is not always normatively significant by noticing that an agent’s failure to realise the risk he is creating can itself display a significant fault in the structure of the practical reasoning that informs his action—just the same kind of fault as that displayed by an advertent risk-taker. The upshot of this discussion is a new schema of types of criminal fault; I finally note some problems with the practicability of such a new schema.

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Notes

  1. Compare Law Commission, A Criminal Code for England and Wales (Law Com. No. 177; HMSO, 1989) vol. 1, Draft Criminal Code Bill, cls 6, 18 (English criminal law talks of ‘intention’ rather than ‘purpose’). See D Ormerod and K Laird, Smith, Hogan, and Ormerod’s Criminal Law (15th edn; Oxford University Press, 2018; hereafter Ormerod and Laird), chs 3–4. On the ‘standard account’ of recklessness, see F Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge University Press, 2016; hereafter, Stark), ch. 2. ‘Anglo-’ should be understood strictly here: Scots criminal law is different, especially in relation to recklessness (see F Stark, ‘Rethinking Recklessness’ Juridical Review (2011): 163).

  2. See Law Commission, Draft Criminal Code Bill, cls 18–20.

  3. See, classically, Law Commission, Report on the Mental Element in Crime (Law Com. No. 89; HMSO, 1978); G Williams, The Mental Element in Crime (Magnes Press, 1965).

  4. As German theorists talk: see M Bohlander, Principles of German Criminal Law (Hart, 2009), 59.

  5. See Model Penal Code § 2.02(5); Draft Criminal Code cl. 19 (‘Degrees of fault’); Ormerod and Laird, 89.

  6. Draft Criminal Code cl. 20, endorsed by Ormerod and Laird, 148; and see Model Penal Code § 2.02(3).

  7. See AP Simester et al., Simester and Sullivan’s Criminal Law: Theory and Doctrine (6th edn; Hart, 2016; hereafter, Simester and Sullivan), 168: negligence-based liability is ‘properly exceptional, and normally the law is reluctant to inflict serious criminal (rather than civil) sanctions upon people who have merely been negligent’. Given the number of offences that require no more than negligence in contemporary Anglo-American criminal law, this presumption might seem outmoded: I cannot pursue this topic here.

  8. See Ormerod and Laird, 89–101; Simester and Sullivan, 134–48; see also RA Duff, ‘Intention Revisited’, in D Baker and J Horder (eds), The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams (Cambridge University Press, 2013), 148. But see further at nn 40–41 below.

  9. See, e.g., Lord Bingham’s claim that if someone ‘genuinely does not perceive the risk’ that he creates, he ‘may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment’ (G [2004] 1 AC 1034, at [32]). For rebuttals, see HLA Hart, ‘Negligence, Mens Rea, and Criminal Responsibility’, in Hart, Punishment and Responsibility (2nd edn, Oxford University Press, 2008), 136; Stark, ch. 8.

  10. Offences Against the Person Act 1861, ss. 20, 47; see Model Penal Code § 211.1(1) (‘Simple Assault’).

  11. Criminal Damage Act 1971, s. 1(1); Model Penal Code § 220.3 (‘Criminal Mischief’). A reviewer pointed out that prosecutors could specify intention, or only recklessness, in the indictment: but the offence label, the defendant’s formal conviction, will still not distinguish them; the objection is that it should.

  12. This is true, for instance, of criminal damage and of assault occasioning bodily harm.

  13. The standard English account does not require a ‘substantial’ risk—only a risk that it is ‘unreasonable’ to take (Draft Criminal Code cl. 18(c), endorsed by Lord Bingham in G [2004] 1 AC 1034, [41]). Alexander and Ferzan argue that ‘substantial’ adds nothing to ‘unjustifiable’ (L Alexander and KK Ferzan, Crime and Culpability: A Theory of Criminal Law (Cambridge University Press, 2009), 25–27): but there can be unjustified risks of harm that should not be criminalised, on ‘de minimis’ grounds. It might, however, as indicated in the text, be better to talk of a ‘significant’ risk.

  14. The 1976 Act was intended to give statutory form to the Morgan doctrine that a man who forced sex on a non-consenting woman in the ‘genuine’ belief that she consented was not guilty of rape, even if his belief was wholly unreasonable (DPP v Morgan [1976] AC 182; Hansard 13 February 1976, vol. 905, col. 801), but it arguably defined a more expansive mens rea. For on the standard account recklessness as to V’s lack of consent requires only an awareness of a risk (an unreasonable risk) that V might not be consenting: but in Morgan, Lord Hailsham said that rape required an ‘intention of having intercourse willy-nilly not caring whether the victim consents or no’ (at 215). That conception of recklessness captures agents like Alan, but seems less apt for agents like Beryl, who act on the belief that it is more likely than not that the risk will not be actualised, and in the hope that it will not be; see further at nn 35–36 below.

  15. Is this last possibility realistic? If it can be proved that V did not consent, must D not at least have realised that there was a risk that V was non-consenting? Even if Mr Cogan, who was acquitted following Morgan, believed Mrs Leak’s husband’s story that she consented to intercourse with him, must he not have realised that there was a chance that she did not consent (Cogan and Leak [1976] QB 217)? But a man could be so gripped by an unreasonable conviction that V consents as to be oblivious to the risk that she does not.

  16. One who sexually penetrates a non-consenting victim without a reasonable belief in her consent is at least negligent as to V’s consent; we are not dealing here with strict liability. It would of course be possible to have ‘a separate, lesser offence’ of ‘gross negligence rape’ to capture one who ‘honestly but unreasonably believed that there was consent’ (Law Reform Commission of Ireland, Knowledge or Belief Concerning Consent in Rape Law (LRC IP 15, 2018), paras 4.01–12; see Swedish Penal Code, ch. 6): but the question here is whether English law is right to hold such a person guilty of the same criminal wrong as one who realises that the other person is not or might not be consenting.

  17. G [2004] 1 AC 1034, at [32] (Lord Bingham; see n. 10 above).

  18. See Ormerod and Laird, 513–15. Compare the Scottish conception of ‘wicked recklessness’ (which need not involve awareness that death might ensue) as sufficing for a murder conviction: C McDiarmid, ‘Something Wicked this Way Comes: The Mens Rea of Murder in Scots Law’ Juridical Review (2012): 283.

  19. Including the English Law Commission, in Murder, Manslaughter and Infanticide (Law Com. No. 304; TSO, 2006), Part II, for ‘first degree murder’ (it would still allow an intention to cause serious injury to suffice by itself for ‘second degree murder’).

  20. For useful accounts in English of the German schema, see M Bohlander, Principles of German Criminal Law (Hart, 2009), 59–67; MD Dubber and T Hörnle, Criminal Law: A Comparative Approach (Oxford University Press, 2014), 229–34, 241–45.

  21. German Criminal Code (Strafgesetzbuch, StGB; translated by M Bohlander as The German Criminal Code (Hart, 2008)), § 15.

  22. They are found mainly in connection with serious crimes against persons or property (negligent homicide, negligent bodily injury, negligent arson, StGB §§ 222, 229, 306d), offences against national security and other public interests (e.g., StGB §§ 97, 109e, 138, 161), offences connected to money laundering and other kinds of financial malpractice (e.g., StGB §§ 261, 264, 283, 283b), and offences of ‘causing a common danger’ (StGB §§ 306–19) and of environmental harm or risk (StGB §§ 324–30). German law also contains, we should note, a separate realm of formally non-criminal Ordnungswidrigkeiten, or regulatory violations, for which negligence typically suffices: Gesetz über Ordnungswidrigkeiten (OWiG), § 10; see D Ohana, ‘Regulatory Offenses and Administrative Sanctions: Between Criminal and Administrative Law’, in MD Dubber and T Hörnle (eds), The Oxford Handbook of Criminal Law (Oxford University Press, 2014), 1064.

  23. For useful accounts in English of the distinction between dolus eventualis and advertent Fahrlässigkeit, see G Taylor, ‘Concepts of Intention in German Criminal Law’ Oxford Journal of Legal Studies 24 (2004): 99; B Krebs, Joint Criminal Enterprise in English and German Law (DPhil thesis, 2015; Oxford University Research Archive, https://ora.ox.ac.uk/objects/uuid:34e2c466-33c0-45ea-8790-338c4f4c893d), 54–73.

  24. StGB § 303. Compare Criminal Damage Act 1971, s. 1(1), covering intentional and reckless damaging.

  25. StGB § 212.

  26. See StGB §§ 222 (negligent manslaughter), 229 (causing bodily harm by negligence). For English law, see at nn 11–12 above; neither Alan nor Beryl would be guilty of an attempt if the harm did not ensue. For brief further comment on the law of attempts, see at nn 40–41 below.

  27. See at nn 41–42 below.

  28. See StGB § 177 (as amended in 2016).

  29. Sexual Offences Act 2003, s. 1(1); see at nn 15–18 above.

  30. For English-language critiques, see especially T Weigend, ‘Subjective Elements of Criminal Liability’, in Dubber and Hörnle, n. 23 above, 490, at 498–502; CF Stuckenberg, ‘Problems of “Subjective” Imputation in Domestic and International Criminal Law’ Journal of International Criminal Justice 12 (2014): 311, at 312–15; Taylor, n. 24 above, and ‘The Intention Debate in German Criminal Law’ Ratio Juris 17 (2004): 34. For a sympathetic defence of dolus eventualis, see Krebs, n. 24 above, 54–73, and ‘Mens Rea in Joint Enterprise: A Role for Endorsement?’ Cambridge Law Journal 74 (2015): 480.

  31. See e.g., BGHSt 36.1 (1988): a man who knew he was HIV positive, and had been warned of the dangers of infection through unprotected sex, had unprotected sex with partners whom he did not warn; absent proof that he had in fact infected any of them, could he be convicted of attempting to cause bodily harm (StGB § 223) as having acted with dolus eventualis as to the infection he might cause? Both cognitive and volitional elements of dolus eventualis must, the court held, be established; but in establishing the volitional element, the court could properly attend to D’s character and past life as evidence of his attitude to the interests at stake, and to the seriousness of the risk [24]. Character and probability thus figure, officially, as evidence of dolus eventualis; the worry is that they will in effect serve as criteria.

  32. On unleashing risk, see Alexander and Ferzan, n. 14 above, ch. 2. The objection to allowing attitudes to determine liability might also gain traction from the (at best misleading) thought that we do not control, and therefore cannot be held responsible for, how we feel—a thought that underpins, for instance, familiar liberal objections to ‘hate crime’ legislation (see e.g., HM Hurd, ‘Why Liberals Should Hate “Hate Crime Legislation”’ Law and Philosophy 20 (2001): 215).

  33. Or she might not see it as a ‘price’ at all: to see some anticipated harm as a price is to see it as constituting a reason against acting as I do—though not necessarily one that outweighs the reasons in favour of the action; but if I am sufficiently (practically) indifferent to the interests at stake, I might not see it as a reason against my action at all.

  34. DPP v Morgan [1976] AC 182, at 215 (Lord Hailsham); see n. 15 above.

  35. DPP v Morgan [1976] AC 182, at 215 (Lord Hailsham).

  36. Unless his course of action was precisely intended to avert the harm that it was likely to cause, as when a very dangerous operation is undertaken in a desperate attempt to save a patient’s life. For fuller discussion of the issues discussed here, see RA Duff, ‘Intention, Recklessness, and Probable Consequences’ Criminal Law Review [1980]: 404.

  37. See at n. 32 above.

  38. Hyam v DPP [1975] AC 55, at 86: see Ormerod and Laird, 90; Simester and Sullivan, 134–45.

  39. As he would be under German law; see at nn 24–26 above.

  40. For detailed argument on the mens rea of attempts, see RA Duff, Criminal Attempts (Oxford University Press, 1996), chs 1, 13.3.

  41. See at n. 21 above.

  42. Or as acting ‘intentionally’, but not ‘with intent’, as to the harm: see Duff, n. 9 above.

  43. Aristotle, Nicomachean Ethics (trans. R Crisp; Cambridge University Press, 2000), III.1, 1110b. As will become clear in what follows, ‘voluntary’ and ‘involuntary’ are far from ideal translations of ‘hekousion’ and ‘akousion’.

  44. JL Austin, ‘A Plea for Excuses’, in Austin, Philosophical Papers (Oxford University Press, 1961), 123, at 142–43.

  45. Austin, ‘A Plea for Excuses’, 140.

  46. To talk of the ‘merely’ negligent agent is to assume that negligence is indeed a less serious species of fault than recklessness: ceteris paribus, one who negligently creates a risk is less culpable than one who creates it knowingly; the question is whether this difference in culpability is grounded in the difference between advertence and inadvertence. Critics of the standard account could instead accept the factual criterion of advertence as marking the distinction between recklessness and negligence, and then argue that negligence as thus defined is not always a lesser fault than recklessness (compare D Archard, ‘The Mens Rea of Rape: Reasonableness and Culpable Mistakes’, in K Burgess-Jackson (ed.), A Most Detestable Crime (Oxford University Press, 1999), 213). See also SV Shiffrin, ‘The Moral Neglect of Negligence’, in D Sobel et al. (eds.), Oxford Studies in Political Philosophy, vol. 3 (Oxford University Press, 2017), 197.

  47. For a more detailed discussion of these two cases, see RA Duff, Intention, Agency, and Criminal Liability (Blackwell, 1990), ch. 7.

  48. I cannot pursue here the question of what could render a mistaken belief in consent ‘reasonable’, or of how plausible it could be for him to claim that he was genuinely unaware even of a risk that V did not consent (see n. 16 above).

  49. This is to require more than English law currently requires, since the grievous bodily harm that a murderer must have intended need not be such that it obviously endangered life; see Ormerod and Laird, 513: but it is at odds with the standard account of recklessness, since it does not require awareness of the risk of death.

  50. See Duff, n. 48 above for criticisms of this and other ‘attitudinal’ accounts, see Stark, 208–25, and further references there, especially KK Ferzan, ‘Opaque Recklessness’ 91 Journal of Criminal Law and Criminology (2001): 597.

  51. But see at n. 43 above, on whether we should distinguish one who acts ‘knowingly’ as to a harm foreseen as practically certain from one who acts ‘willingly’ as to a harm foreseen as likely or probable. We might also wonder whether ‘reckless’ is the right term for agents like Beryl (see at n. 43 above), since they are not utterly reckless as to the harm they might cause; ‘advertent negligence’ might be preferable.

  52. It should be noted that, whilst this would justify a limited version of the English doctrine that an intention to cause grievous bodily harm suffices for murder if the victim dies (see n. 50 above), it would not justify the much more extensive Model Penal Code doctrine of ‘extreme indifference’ murder (§ 210.2; see at n. 19 above): it cannot be plausibly argued that a threat to another’s life is integral to, or intimately connected to, every instance of such offences as ‘arson, burglary, kidnapping, or felonious escape’, even when they in fact cause death.

  53. In the case of murder (but not rape), we can talk of a legitimate type of ‘constructive liability’: D’s liability for murder is constructed out of his liability for an intentional ‘gateway wrong’ (causing grievous bodily harm) that is closely or intrinsically connected to murder; see Simester and Sullivan, 204–10.

  54. Parker [1977] 1 WLR 600; Criminal Damage Act 1971, s. 1(1): his claim was that he slammed the handset down in frustration because the phone did not work (this was the last of a series of annoying events), and that the (obviously high) possibility that this would damage it did not occur to him. (Thanks to a reviewer for reminding me of this kind of case.).

  55. See at nn 31–32, 37–38 above.

  56. See Caldwell AC 341; Lawrence [1982] AC 510; Ormerod and Laird, 105–10.

  57. On which, see Stark, chs 4–5.

  58. See n. 23 above, and accompanying text.

  59. ‘Gross negligence’ currently figures in English law most saliently in ‘gross negligence manslaughter’, but also in some driving offences: see Simester and Sullivan, 160–61, 416–20; Ormerod and Laird, 583–96; Road Traffic Act 1988, s. 2A; Bateman (1927) 19 Cr App R 8.

  60. See Bateman (1927) 19 Cr App R 8; Adomako [1995] 1 AC 171.

  61. But see Duff, n. 41 above, chs 9–11; RA Duff, Answering for Crime (Hart Publishing, 2007), ch. 5.

Acknowledgements

Thanks for helpful comments are due to the participants in seminars at the Universities of Bergen, Nottingham, Reading, and Surrey, to Carl-Friedrich Stuckenberg, and especially to an anonymous referee for this journal; grateful thanks also to Jill Flohil for her thorough and helpful editorial work.

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Duff, R.A. Two Models of Criminal Fault. Criminal Law, Philosophy 13, 643–665 (2019). https://doi.org/10.1007/s11572-019-09504-w

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