Responsibility Between Neuroscience and Criminal Law. the Control Component of Criminal Liability Sofia Bonicalzi(Α) & Patrick Haggard(Β),(Γ)

RIVISTA INTERNAZIONALE DI FILOSOFIA E PSICOLOGIA ISSN 2039-4667; E-ISSN 2239-2629 DOI: 10.4453/rifp.2019.0010 Vol. 10 (2019), n. 2, pp. 103-119

STUDI

Responsibility Between Neuroscience and Criminal Law. The Control Component of Criminal Liability Sofia Bonicalzi(α) & Patrick Haggard(β),(γ)

Ricevuto: 20 aprile 2019; accettato: 7 maggio 2019

█ Abstract The paper discusses the contribution that the neuroscience of action can offer to the legal understanding of action control and responsibility in the case of adult individuals. In particular, we address the issues that follow. What are the cognitive capacities that agents must display in order to be held liable to punishment in criminal law? Is the legal model of liability to punishment compatible with a scientifically informed understanding of voluntary behaviour? To what extent should the law take into account people’s subjective feelings about their own actions? As a result of our analyses, we indicate some areas where the contribution of the neuroscience of action to the law is potentially relevant. We focus on the subjec- tivity mechanisms of action control, specifically the requirement that the agent must violate the law voluntarily in order to be held responsible, and on the factors that modulate the wrongdoer’s experience of agency. Overall, we advocate more cross-disciplinary work, aimed to bridge the gap between conceptual boundaries, on the theme of responsibility for actions. KEYWORDS: Responsibility; Neurolaw; Sense of Agency; Criminal Law; Criminal Liability

█ Riassunto La responsabilità tra neuroscienza e diritto penale. La componente di controllo dell’imputabilità penale – L’articolo discute il contributo che la neuroscienza dell’azione può offrire ai temi del controllo dell’azione e della responsabilità in ambito legale, nel caso degli individui adulti. In particolare, ci occupe- remo delle questioni che seguono. Quali sono le abilità cognitive che un agente deve possedere per esser considerato penalmente responsabile e quindi punibile? Il modello legalistico della responsabilità è com- patibile con il modello scientifico-naturalistico del comportamento umano? Fino a che punto variazioni nel senso di controllo soggettivo sulle azioni dovrebbero essere considerate un parametro rilevante in sede penale? Sulla scorta della nostra analisi, indicheremo alcune aree nelle quali il contributo della neuroscienza dell’azione a questioni legate al tema della responsabilità legale potrebbe rivelarsi rilevante. L’articolo si concentra sui meccanismi che regolano il senso soggettivo di controllo dell’azione – in particolare il requi- sito secondo il quale l’agente deve violare la legge volontariamente per essere ritenuto responsabile –, e sui fattori che modulano il senso di agentività del colpevole. In conclusione, difenderemo l’appropriatezza di una più ampia riflessione multi-disciplinare volta a ridurre le incompatibilità fra differenti approcci al tema della responsabilità per le nostre azioni. PAROLE CHIAVE: Responsabilità; Neurodiritto; Senso di agentività; Diritto penale; Imputabilità penale

(α)Fakultät für Philosophie, Wissenschaftstheorie und Religionswissenschaft – Ludwig-Maximilians-Universität München, Geschwister-Scholl-Platz 1 - 80539 München (D) (β)Institute of Cognitive Neuroscience, University College London, Gower Street - WC1E 6BT London (UK) (γ)Département de Études Cognitives, École Normale Supérieure, 45 Rue d’Ulm, 75005 Paris (F) E-mail: [email protected] (); [email protected]

Creative Commons - Attribuzione - 4.0 Internazionale

104 Bonicalzi & Haggard

INDIVIDUAL RESPONSIBILITY FOR ACTIONS IS a view, the discussion has focussed on the po- central component in individual self- tential transformative role of neuroscience assessment and interpersonal relations. It is al- and cognitive psychology. These disciplines so a key notion in the law, representing a pre- are seen as potentially revolutionising our condition for liability to punishment in crim- understanding of the bases of voluntary inal law. However, its psychological prereq- agency, directly affecting the legal notions of uisites remain partially underexplored. The “criminal culpability” and “liability to pun- goal of the present paper is twofold. First, it ishment”. For example, Green and Cohen aims to elucidate the minimal psychological have suggested that neuroscience will trans- abilities that an adult individual must display form the law by highlighting that the inflated in order to be considered liable to punish- libertarian conception of metaphysical free ment. Second, it investigates the plausibility will, which seemingly inhabits the law, is not of such criteria with respect to an empirically compatible with a scientifically informed pic- informed picture of voluntary agency. ture of human agency.4 Based on our analyses, we provide some By contrast, Morse has claimed that the suggestions about possible contributions that law incorporates a concept of personhood neuroscience can offer to the law. Whereas that has nothing to do with metaphysical free the scope of our paper is mostly theoretical, to will and is fundamental to our understanding support our view we will use some examples of people as humans, i.e., humans are practi- drawn from English criminal law. cal deliberators who are able to act inten- In order to effectively target individual tionally. This view is so strongly ingrained in behaviour and promote social cohesion, the human normative practices that cannot be law must incorporate – implicitly at least – a easily put in jeopardy by neuroscientific ad- model of intentional, goal-oriented agency, vances. According to Morse, unless the neu- whose nature has increasingly become an ob- roscience of decision-making is able to ject of interest for psychology and neurosci- demonstrate that no one can resist one’s im- ence. Looking for a unified model of human pulses and cravings, it would be implausible psychology, which is both empirically tracta- to assume it can really transform our legal ble and suitable for the law, is therefore cru- concept of responsibility.5 cial. However, it is a common view among From an empirical point of view, the core neuroscientists and legal scholars that neuro- question is what contribution psychological science and the law must remain two sepa- and brain sciences can currently offer in rate enterprises.1 A separation in scope and court. Neuroscientific evidence could be used methodology between the two disciplines is to inform decisions about the degree to indeed worth preserving. While science has a which an individual agent is responsible for a descriptive duty and is concerned with “what specific action. In several cases, the law is al- there is”, the law has an essentially normative ready sufficiently sensitive to the advances in goal and deals with what “ought to be”. In the scientific study of the mind and the brain. this light, Stephen Morse has plausibly sug- In particular, the contribution of neurosci- gested that neuroscience can describe what ence and psychology in specific cases of devi- conditions “count” as impairments to human ation from the standard is already accepted cognition and reasoning, but does not have in some jurisdictions.6 In individual cases, the the power to tell the law what impairments to presence of specific psychopathologies may human’s cognition and reasoning “should be invoked in order to exempt some people count” as excuses from punishment.2 from criminal liability or reduce individual In the emerging field of “neurolaw”,3 at responsibility. For example, clarifying wheth- least two different approaches have emerged. er the defendant’s action (when the person From a theoretical, forward-looking point of kills or is a party to the killing of another) is

Responsibility Between Neuroscience and Criminal Law 105 attributable to a recognised medical condition Despite sharing Morse’s doubts about the may allow the defendant to plead a defence of overall transformative role of neuroscience diminished responsibility.7 In this respect, the for the law, we suggest that neuroscience can main point at stake concerns the admissibil- both play a role in refining the criteria for ity of neuroscientific techniques for estab- minimal rationality and action control and lishing a causal connection, and not just a specify what good candidates for excuses and correlation, between a physical brain state mitigation should look like. In arguing for and a specific outcome, explaining how given this, we mainly focus on the element of ac- mental states are traceable to brain abnor- tion control (among other cognitive abilities malities.8 that the defendant must display to be liable In the present work, we adopt a meta- to punishment), which is central to the neu- approach in order to address the following roscience of volition and action. issues. What are the cognitive capacities that Should discrepancies between neurosci- healthy agents must display in order to be ence and the law be individuated, this should held liable to punishment in criminal law? Is trigger a proper discussion about how to in- the legal model of liability to punishment tegrate the two approaches. Examples in this compatible with a scientifically informed un- direction are already offered by discussion in derstanding of voluntary behaviour? To what cognate research fields. For example, the em- extent should the law take into account peo- pirical study of memory has uncovered prob- ple’s subjective feelings about their own ac- lematic phenomena, including false and im- tions? Clearly, neuroscience is unlikely to agined memories or reconsolidation, thus provide evidence that no one can ever resist showing that people’s memory (e.g., of a wit- one’s impulses and cravings or fulfil the crite- ness in a crime) is not as reliable as it was ria for minimal rationality. Actually, it re- thought to be in the past. Recognising that mains unclear why the contribution of neu- the human capacity to remember past events roscience to the law should go in this direc- is partially undermined by cognitive biases tion at all, i.e., by showing that individuals has appropriately triggered a discussion on entirely and always lack self-control. By con- the usage of memory in the courtroom.13 trast, we already know from neuroscience The paper is organised as follows. First, we that self-control, as the capacity to inhibit ac- discuss how moral responsibility relates to tions,9 is precisely one of the key features of criminal liability for action in order to single human cognition,10 which can be impaired in out the notion of “responsibility” that is rele- case of damages to the frontal lobe.11 Fur- vant in the courtroom. Second, we introduce thermore, neuroscience can explain the the theme of what counts as an excuse. The mechanisms underlying purposive behaviour, topic of excuses represents a useful conceptual i.e., in terms of the ability to act in view of a tool for shedding light on the psychological goal and on the basis of rewards and pun- prerequisites for criminal responsibility. Build- ishments,12 rather than showing that people ing on this, we distinguish between a control- are unable to act on the basis of reasons. component and a cognitive-component of re- Morse acknowledges that neuroscience sponsibility for actions, in order to assess may rather play a role in adjudicating cases of whether these criteria could match reliable evi- excuses and mitigation, by further under- dence in psychology and neuroscience about standing of the conditions that prevent peo- how voluntary agency unfolds. In discussing ple from exercising rationality and self- the contribution that the neuroscience of voli- control. However, he seemingly dismisses tion and action can offer to the law, we focus this point as ultimately not so relevant for the on the subjective feeling of agency naturally law. We take a different perspective, by em- accompanying the performance of voluntary phasising the importance of this challenge. bodily movements. Some final remarks are

106 Bonicalzi & Haggard outlined in the last section. Whereas the theo- “Mens rea” is a legal term, with a moral retical scope of the paper is not limited to a sin- flavour. It has been suggested that criminal gle jurisdiction, we mostly focus on examples liability supervenes on moral responsibility,16 taken from the English criminal law. without the two concepts necessarily coincid- ing. For an act to be criminally culpable, it █ Moral responsibility and criminal liability must also be explicitly made criminal by the statute or common law: despite being moral- This section of the paper discusses the no- ly despicable, many actions (e.g., breaking an tion of “responsibility” that is central to crim- informal promise) are not illegal. Further- inal liability for law violation. In modern de- more, the pre-conditions for moral responsi- mocracies, criminal sanctions are usually bility and legal accountability may differ. thought to derive from the violation of some Philosophers working on moral responsibil- shared code whose respect is imposed by the ity often suggest that moral responsibility law. Such a code seemingly derives from the depends on the agent displaying some sort of combination of moral or conventional “oughts” free will, which might be compatible or not and biological needs. with metaphysical determinism.17 The kind of responsibility that is targeted We suggest that the problem of free will is by criminal sanctions is essentially “retrospec- potentially more relevant when it comes to de- tive personal responsibility for a wrongful ac- fining the role and the justification of pun- tion” (e.g., “Oswald is responsible for killing ishment, i.e., whether these concepts must be Kennedy”), as distinct from prospective re- framed in retributivist or consequentialist sponsibility, which may come in the form of terms, which is the actual main target of general obligations (e.g., “Ted is responsible Greene and Cohen’s 2004 paper. In this re- for his child’s health and education”) or spe- spect, the question about free will, i.e., of cific duties (e.g., “Melanie is responsible for whether people are biologically determined feeding the lovebirds within the next few or not in making their choices and act upon days”). The emphasis on retrospection means them, is seemingly more important. No single that the action in question, i.e., the violation justification of punishment is offered in of the code, has already occurred, namely criminal law, which is usually a mixture of that the physical facts regarding individual retributivist (i.e., the wrongdoer deserves to agency are not in doubt. be punished for violating the law) and conse- In evaluating the agent’s responsibility, quentialist (i.e., punishment sub-serves utili- criminal law takes into account the connec- tarian scopes) intuitions. According to tion existing between the agent’s wrongful Greene and Cohen, neurobiological deter- purpose and the actual harm. Once the minism is incompatible with a retributivist agent’s involvement in a wrongful action is view of punishment, which must therefore be acknowledged, different degrees of connec- abandoned in favour of a consequentialist or tion between the agent’s intent and the out- forward-looking (prospective) view.18 come (i.e., different kinds of “mens rea”) de- In our view, the issue about the role and termine alternative classes of crimes. This justification of punishment must be kept view of the connection between the agent’s conceptually separate from the question mental state and the action largely relies on about the pre-conditions for responsibility. classic belief-desire psychology: conscious Thus, since the law tends not to see the ques- mental states, i.e., intentions, cause the corre- tion of free will as a pre-condition for legal sponding outcomes.14 In the absence of ex- responsibility, in this context we also consid- empting or justifying conditions, the agent is to er this issue of free will as orthogonal to our be held as fully responsible for her own behav- discourse. By contrast, we suggest that re- iour because she acted as she intended to act.15 sponsibility is a social concept that depends

Responsibility Between Neuroscience and Criminal Law 107 upon intersubjectively shared norms of co- ished – or, at least, the punishment should operation: the concept would lose any grip if be mitigated. The distinction has undergone the agent were not part of a social communi- a number of criticisms.23 However, admit- ty, or if she did not have the capacity to men- ting the possibility of justifications and ex- talise (i.e., to understand other people’s states cuses allows the defendant to be treated ac- of mind) and to see others as intentional cording to the specific circumstances of the agents (i.e., as capable of acting upon their action and the agent’s peculiar cognitive mental states). Its pre-conditions, including abilities and mental states.24 self-control and self-awareness, are psycho- With justifications (e.g., cases of self- logical rather than metaphysical.19 defence), responsibility is preserved. With excuses, it is nullified or diminished. For this █ Justifications and excuses reason, excuses are particularly relevant for the analysis of the psychological pre- What elements contribute to justify or ex- conditions of responsibility in criminal law. empt from punishment someone who com- Excuses are effective if they can appropriate- mits a wrongdoing? Personal responsibility is ly question the presence of at least one of the usually assumed to be a primitive or default necessary elements for criminal liability, i.e., condition by the law. In the absence of ex- “actus reus” and “mens rea”. But what counts empting or mitigating factors, a wrongdoer is as an excuse? When the agent performs a treated as fully responsible for her own be- wrongful action, she could be (partially) ex- haviour. Personal responsibility for action is empted from criminal liability if the presence justified by drawing on some version of the of given psychological conditions is acknowl- idea that each individual, at least in principle, edged. is to be regarded as able to behave autono- In “case” law, no unified and complete list mously and control her own actions.20 This is of excusing psychological conditions is avail- generally invoked as a principle of fairness able. Potentially, individual cases could al- regulating interpersonal relationships. Treat- ways establish new precedents. Moreover, ing the wrongdoer as someone who is unable since the success of a plea is subjected to the to control her behaviour might seem to be judge’s or jury’s verdict, the possible presence detrimental to her individual autonomy and of an excuse is to be considered as a sufficient “dignity”. condition for acquittal, but not as an element In a seminal paper, Hart treats responsi- that will necessarily lead to a discharge. In bility in terms of “defeasibility”: a person is English common law, the need to guarantee responsible for something unless such re- that people displaying given psychological sponsibility attribution can be defeated by conditions can appeal to excuses of some sort the presence of a justification or an excuse.21 is regulated by the automatism/insanity de- The distinction between justifications and fence (full defence), and the diminished re- excuses is a mainstay in the philosophy of sponsibility and loss of control defence (par- criminal law and in the classification of de- tial defence).25 fences established by the English common Methodologically speaking, considering law.22 Justifications work as follows: when cases of full and partial defences (i.e., what is an offence actually takes place, the defend- missing for full-fledged responsibility) may ant can be exculpated by proving that her offer some insights on the pre-conditions for conduct was not legally wrong due to the responsibility in regular cases. The focus is particular circumstances in which the action not on pleas “per se”: we will consider them was performed. By contrast, when excuses as valuable tools for shedding light on the el- can be invoked, the action remains legally ements characterising cases of responsibility wrong, but the defendant is not to be pun- for actions.

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█ Insanity and automatism or several of the cognitive capacities that follow: (1) the capacity to rationally form a In English common law, insanity and au- judgment about the relevant conduct or cir- tomatism are two different kinds of (mutually cumstances; (2) the capacity to understand incompatible) defences that may nullify crim- the wrongfulness of what she is charged with inal responsibility for a crime. Exempting having done; (3) the capacity to control her completely from criminal liability, insanity physical acts in relation to the relevant con- and automatism are both considered forms of duct or circumstances. The recent introduc- full defence. tion of a reference to a medical condition goes in the direction of assessing insanity on █ Insanity a potentially more objective ground, which might subtract weight and explanatory power The verdict of «not guilty by reason of from individual subjective reports. The aim insanity» is a full defence to a crime that is to move towards a more empirically driven may apply to three different situations, i.e., understanding of the conditions for insanity insanity before the trial, unfitness to plead, whereby the focus remains nonetheless on and insanity at the time of the offence.26 the cognitive aspect of the incapacitation. Given that the focus is on the psychologi- To be unable to do otherwise in this cal elements of responsibility for actions, in- sense, the defendant must suffer from a con- sanity at the time of the offence appears par- dition of permanent or temporary cognitive ticularly relevant. In the English common impairment, which is thought to make her law, it is regulated by the application of the unable to distinguish right from wrong, or to M’Naghten rules (1843), which aimed to set understand the nature and quality of her own up a test for establishing a specific defect of actions. The cognitive faculties that are usu- reason that makes the defendant not guilty ally associated with these capacities are those by reason of insanity. As stated by the House of reason, memory and understanding.29 The of Lords in 1843: «To establish a defence on term “insanity” per se is a (stigmatising and the ground of insanity, it must be clearly out-dated) legal and not a medical, term: in- proved that, at the time of the committing of sanity defines cognitive deficiency rather the act, the party accused was labouring un- than irrationality.30 To count for the insanity der such a defect of reason, from disease of defence, a “defect of reason” must be caused the mind, as not to know the nature and by an internal source, identifiable as a disease quality of the act he was doing; or, if he did of the mind (including arteriosclerosis,31 epi- know it, that he did not know he was doing lepsy,32 sleepwalking,33 hyperglycaemia aris- what was wrong».27 ing from diabetes34). Recently the Law Commission has pro- The vagueness of the criteria for cognitive posed to replace the defence of insanity with insanity and the thin distinction between in- the lack of capacity defence, leading to a ver- ternal and external causes of the disease have dict of «not criminally responsible by reason been extensively criticised in the literature.35 of a recognised medical condition», which In particular, the definition of “insanity” must be professionally recognised.28 could prove to be too narrow to capture bor- The grounding idea of the proposal is that derline cases, including cases in which people the defendant can be recognised «not crimi- happily did the wrong thing knowing that it nally responsible by reason of a recognised was wrong. The interpretation of the concept medical condition» if, at the time of the of- of “wrong” itself eludes straightforward ex- fence, she could not have done otherwise. In planations. On the one hand, the emphasis this context, the impossibility of doing oth- on rationality as a capacity is meant to avoid erwise is verified if the defendant lacks one confusions between cognitive impairment

Responsibility Between Neuroscience and Criminal Law 109

(i.e., being unable to understand that some- of complete defence, which could be pleaded thing is legally wrong) and ignorance of the in cases where the action is produced by an contents of the law (e.g., not knowing that external source or a reflex action, including doing something is prohibited by the law). sneezing, hypoglycaemia, and post-traumatic The latter does not amount to an acquit- stress disorder.39 tal (ignorantia juris non excusat): if the de- A successful plea of automatism requires fendant is ignorant about the content of a that the defendant, at the time of the offence, norm but not cognitively impaired, she is lia- lacked control over her body (“lack of con- ble to punishment. It is worth noting that a sciousness” or “volitional control”). The pur- relevant cognitive impairment is also differ- pose of this type of defence is to deny that ent from ignorance of what one is doing, the unlawful action was performed under the which may potentially exculpate from liabil- defendant’s voluntary control so that even ity. For example, if the defendant did not strict liability is absent. Pleas of automatism know that the drink she was serving to the are limited to specific situations, which do victim was poisonous, she is likely to be ex- not include cases of prior fault, intoxication, culpated from liability.36 duress, and insanity.40 On the other hand, the M’Naghten rules The idea is that, in cases of automatism, specify that the defendant can plead the de- what is absent is the mind’s control over the fence of insanity if she did not understand that physical body.41 what she was doing was wrong. However, if ignorance of the specific content of the law is not █ Diminished responsibility relevant for pleading the defence of insanity, it seems that what the test is actually establishing Reforming section 2 of the Homicide Act is whether the defendant was unable to under- 1957 (c. 11), Section 52 of the Coroners and stand what was morally, and not just legally, Justice Act 2009 (England and Wales) states wrong – as some of the relevant cases explicitly that, when supported by medical evidence,42 state.37 If this were the case, the requirements an abnormality in the defendant’s mental for criminal liability could map more precisely functioning could be the basis of a plea of onto typical conditions for responsibility in diminished responsibility.43 The grounding moral psychology, including responsiveness to idea is that an abnormality of mental func- reasons or the ability to distinguish right from tioning causes (or is a significant contributo- wrong.38 ry factor in causing) the wrongdoing, for ex- The law seemingly assumes that, beyond ample by impairing the defendant’s «ability the knowledge of specific norms, individuals to form a rational judgment and to exercise have reached a certain level of moral under- self-control at the relevant time».44 standing. In this sense, the defendant must Differently from the defences of insanity be at least able to procedurally follow the and automatism, the plea of diminished re- norms that are prescribed by the law. This sponsibility is a partial defence, which applies means that she should be able to understand only to murder. The importance of the de- what the law requires and to modify her be- fence is that, when successfully pleaded, the haviour accordingly. To do this, the defend- trial judge will have discretion in the sen- ant must possess some basic requirements of tence to be imposed. The practical result rationality allowing her to convert general would be that the offence can be classified as rules into everyday practices. manslaughter rather than as murder. Analo- gously to automatism, the defence does not █ Automatism apply in cases of voluntary acute intoxication.45 According to the diminished responsi- Non-insane automatism is a different form bility defence:

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(1) A person (“D”) who kills or is a party to fence applies, the defendant is liable to be the killing of another is not to be con- convicted of voluntary manslaughter, instead victed of murder if D was suffering from of murder. an abnormality of mental functioning which – (a) arose from a recognised █ Responsibility between criminal law and medical condition; (b) substantially im- psychology paired D’s ability to do one or more of the things mentioned in subsection In the previous section, we listed the cas- (1A); and (c) provides an explanation es in which criminal liability is absent or for D’s acts and omissions in doing or mitigated due to different types of cognitive being a party to the killing. impairments recognised by the law. Based (1A) Those things are – (a) to understand the on this, the scope of the present section is to nature of D’s conduct; (b) to form a ra- discuss a positive characterisation of the tional judgment; (c) to exercise self- pre-conditions for criminal liability. Analys- control. ing the defences outlined in the previous (1B) For the purposes of subsection (1)(c), an section, criminal liability emerges as de- abnormality of mental functioning pro- pending upon action control and the joint vides an explanation for D’s conduct if it presence of some cognitive/epistemic abili- causes, or is a significant contributory ties. Action control refers to the agent’s capac- factor in causing, D to carry out that ity to regulate her own physical movements, conduct.46 acting in accordance to her own goals or re- fraining from acting when needed. From the █ Loss of control cognitive/epistemic point of view, an agent acting according to her own goals must also Sections 54-55 of the Coroners and Justice be able to understand the nature of the con- Act 2009 (England and Wales) introduced an sequences of her actions. These two compo- entirely new loss of control defence, which re- nents are deeply intertwined to the extent placed the former provocation defence. that, to be criminally liable, the individual must be able to prevent herself (control- (1) Where a person (“D”) kills or is a party component) from acting in ways that would to the killing of another (“V”), D is not be understandably (cognitive-component) to be convicted of murder if – (a) D’s against the law: the defendant must be able acts and omissions in doing or being a to violate the law voluntarily. party to the killing resulted from D’s Taken together, these elements fulfil the loss of self-control; (b) the loss of self- requisites of Hart’s definition of “capacity- control had a qualifying trigger;47 and responsibility”, according to which responsi- (c) a person of D’s sex and age, with a bility for actions is defined by: «Understand- normal degree of tolerance and self- ing, reasoning, and control of conduct: the restraint and in the circumstances of ability to understand what conduct legal D, might have reacted in the same or rules on morality require, to deliberate and in a similar way to D. reach decisions concerning these requirements, and to conform to decisions when Differently from what stated in the Hom- made».49 An agent who is responsible in this icide Act about provocation,48 in the case of sense satisfies also Shoemaker’s requirements the loss of control defence it is not required for responsibility as answerability: «To be that control is suddenly lost. At the same answerability-responsible for F is for F to be time the killing cannot be the result of the connected to my evaluative judgments in a defendant’s desire for revenge. Where the de- way that renders me able (in principle) to cite

Responsibility Between Neuroscience and Criminal Law 111 the reasons I took to justify F».50 those movements that are not subordinate to In the remaining part of this section, we the agent’s conscious plans of action: control- focus on the concepts of “action control” and ling agency – in the absence of which no one “voluntariness” in the law and cognitive sci- should be held criminally responsible – is «the ence. As will become evident, the distinction mind of a man bent on some conscious ac- between voluntary and involuntary actions in tion».55 As a result, this requirement that the criminal law does not perfectly map onto the action was voluntarily executed might seem distinction between voluntary and involun- suspiciously dualistic in its content. tary actions in psychology and cognitive neu- Despite widespread agreement concern- roscience. ing the basic aim of the principle, the correct interpretation of the requirement is conten- █ Control and voluntariness in the law tious. Many legal theorists highlight that, far from having a positive content, the term Voluntariness is a key element both in the “voluntary” is no more than an excluder full (i.e., insanity, automatism) and in the word, i.e., an abstract expression describing partial (i.e., diminished responsibility, loss of the absence of alternative states, such as co- control) defences previously outlined. For ercion, sleep, or unconsciousness.56 Crucially, the defendant to be liable to punishment such a requirement prevents people from be- «the accused’s “conduct” […] must, so it is ing prosecuted for something they did not said, be voluntary and not involuntary»:51 no do: the defendant must be judged only for an criminal offence could be committed without action she has performed. In the absence of the execution of a voluntary act.52 The dis- an action, there would be no sufficient evi- tinction between voluntary and involuntary dence of the actor’s intention to do some- actions represents the basic psychological thing wrong57 – this explains the difficulty in category for evaluating one’s criminal re- addressing cases of attempts, omissions and sponsibility for an offence. Absence of volun- vicarious liability.58 tariness might be produced both by external In order to include omissions, some legal and internal factors, and corresponds to the theorists define the legally relevant connection agent lacking physical or mental control over between the agent and the outcome in terms of the action. Conceptually prior to evaluating what the agent had the power to do or control, the presence and degree of “mens rea”, the even in the absence of causation. It is worth acknowledgment of an action as voluntary noting that causation per se is not sufficient enables the assessment of one’s “strict” or from criminal liability or for assessing “mens “absolute liability” (i.e., independent of fault, rea”.59 In fact, the outcome may depend on negligence, or intention) to punishment for oblique intention, negligent or reckless behav- criminal offences. Thus, the concept of “vol- iour, and “bad luck” rather than on direct in- untary” is used to discriminate between ac- tent. In other cases, the agent might cause the tions and mere movements, suggesting the outcome in an accidental way.60 presence of a «minimum link between mind Therefore, save cases of strict liability, and body, indispensable for any form of causation is not sufficient for establishing the criminal responsibility».53 In traditional ju- agent’s level of criminal responsibility. The risprudence, a voluntary action is defined as voluntary-act requirement fulfils a second a muscular contraction (physical element) task, emphasising that, to be punishable, the preceded by an act of the will or a volition wrongful action must be voluntarily per- (mental element).54 Sticking to ordinary lan- formed. The linkage between the agent’s men- guage, Hart reconstructs this very general pic- tal states and the action is usually interpreted ture by saying that involuntary movements in causal terms: the wrongdoing would not (namely «not governed by the will») are have existed without the defendant’s decision

112 Bonicalzi & Haggard to act or to avoid acting. The law cannot ingly executed, without referring to any spe- prosecute unintentional reflexes resulting cific brain function and relying on classic de- from automatism. Acting voluntarily implies sire-belief psychology. Defending such a goal-directedness, or at least that the wrong- strong dichotomy between voluntary and in- ful outcome is the unintended outcome of a voluntary actions may lead to implicitly as- previous (intended) fault or of a habitual sume a dualistic view of human behaviour. movement.61 The set of actions that are con- By contrast, the cognitive neuroscience of vo- sidered voluntary in the criminal law is thus lition and action recognises voluntary actions more inclusive than the set of intentional ac- as equally dependent upon specific brain cir- tions in philosophy whereby, according to cuits. mainstream causal theories, the intention (i.e., In the neuroscience of volition and action, a consciously accessible mental state) causes the distinction between voluntary and invol- the action.62 For example, causing harm by untary actions is recognised.63 Passingham acting absent-mindedly may attenuate the de- and colleagues define voluntary (internally or gree of “mens rea”, without the corresponding self-generated) actions as those actions that action being classified as involuntary. are not driven by an external trigger.64 How- Overall, the principle suggests that the de- ever, the distinction is not grounded in dif- fendant can be held responsible only for ferent types of explanations about how hu- things that depend on factors under her con- man behaviour unfolds. trol. An intuitive corollary is that criminal According to neuroscientific evidence, liability is unjust if imposed for a state of af- even the more nuanced and complex volun- fairs over which the defendant lacks signifi- tary actions, and goal-directed agency in gen- cant control. Criminal law requires that the eral, are not independent of the neural cir- agent is able to control the actual outcome of cuits enabling them. By contrast, complex her action, but also that she is able to foresee voluntary actions represent the highest point potential or expected outcomes that may de- of a “continuum” starting from very simple rive from the action. For criminal liability to stimulus-driven motor responses. The execu- apply, the wrongful result must be a predict- tion of all voluntary movements depends on able, avoidable, consequence of a given be- the primary motor cortex (M1), with a major haviour. To give an example, the actual pres- contribution of the premotor cortex. Specific ence of a pedestrian is a factual element that areas of the brain – including the pre- is beyond the reckless driver’s control, but it supplementary motor area, the anterior pre- is a possibility that a rational agent is sup- frontal cortex and the parietal cortex – sup- posed to be able to take into account. port many of the characteristics usually associated with conscious behaviour, such as ██ Control and voluntariness in cognitive sci- planning, inhibiting inappropriate actions,65 ence or selecting the option to pursue.66 Prefrontal regions are involved in action selection and The law admits differences in degrees for maintenance of the goal, and other struc- given psychological categories (including tures, such as the basal ganglia and the cere- “mens rea” or diminished responsibility), but bellum, participate in the coordination of draws a thick line between voluntary and in- movement and in cognitive behaviour, involuntary actions. In the case of the defences cluding planning or reward-based learning.67 outlined in the previous section, the involun- How is this relevant for the law? In order tary character of the act traces back to differ- to properly exercise its functions, the law ent types of cognitive impairments. In the must resort to some coarse-grained distinc- absence of a condition of cognitive impair- tions regarding acceptable and unacceptable ment, the law assumes that the act was will- behaviour, which seems to have little in

Responsibility Between Neuroscience and Criminal Law 113 common with a neuroscientific understand- world. The sense of agency and the sense of ing of the fine-grained differences between responsibility for one’s own actions are seem- types of bodily actions. The reason why the ingly tightly integrated. It has been shown law targets only intentional harmful behav- that factors that contribute to reducing the iour and not reflexes is that the former in- sense of agency are also involved in reducing cludes the actions that are susceptible to the sense of responsibility for action.69 modification by exercising one’s individual But is the extent to which people feel they control and cognitive abilities. are in control of their actions, considering For practical purposes, the law must also standard inter-individual variations, rel- therefore incorporate a scientifically plausi- evant for the law? Overall, this seems to be ble understanding of how voluntary behav- the case. Only an agent who is able to per- iour unfolds. Our suggestion is that the neu- ceive herself as the cause of her own actions, roscience of volition and action can and tracking the linkage between a voluntary should contribute more and more to the bodily movement and its effect, could be sus- framing and understanding of justifications ceptible to the law’s requirements, e.g. could and excuses to criminal liability. This can be learn the contingency between actions and done, for example, by improving understand- outcomes in order to repeat or not to repeat ing of the conditions under which people similar behaviours in the future. This experi- lack control over their bodily movements. ence of authorship extends from the pre- Along a continuum that rejects strong di- reflective sense of agency to the feeling of re- chotomies, individuals can be distinguished gret for the negative outcomes of the actions depending on their capacities, which trans- people felt in control of.70 In the absence of late into the ability to understand the law’s this constellation of feelings, people would requirements, act upon them, and learn from perceive legal requirements as hardly ac- previous mistakes. The neuroscience of acceptable constrictions. Correspondingly, it tion and volition can help to elucidate what might be unfair to hold them liable to pun- brain structures and functions enable or un- ishment. dermine those capacities. As a result, psy- However, it is unclear whether the law chology and neuroscience are more likely to must take into account people’s feelings and explain the mechanisms that make our re- subjective reports over their own agency in sponsible actions possible rather than to rev- order to draw evaluative conclusions about olutionise our concept of responsibility. the extent to which they are liable to pun- To give a more concrete suggestion, a ishment. On the one hand, the law is mainly specific area where the contribution of the concerned with practical outcomes: criminal neuroscience of action and volition can be law treats murder differently from attempted relevant concerns the subjective experience, murder even where, in the two cases, the i.e., the sense of agency, tied to the perfor- agent’s mental states and bodily movements mance of voluntary actions. Conscious expe- do not differ. On the other hand, psychologi- riences such as choosing, deciding, or initiat- cal categories are central to criminal law. Just ing a movement are in fact accompanied by a consider how the evaluation of the different specific phenomenology that is absent in re- degrees of “mens rea” relies entirely on con- flex actions and less intense in the habitual siderations concerning the nature of people’s ones. The sense of agency naturally accom- mental states. panies people’s voluntary actions and is rec- The difficulty in dealing with this issue ognised as a key feature of human mental emerges clearly in the discussion about the life.68 It can be defined as people’s subjective limits and the applicability of the “loss of feeling to control their actions and, through control defence”, whose interpretation re- them, their consequences in the external mains controversial to date.71 One clear ele-

114 Bonicalzi & Haggard ment of difficulty is that it is problematic to ri” (i.e., following outcome presentation), suggest that a diminished subjective sense of self-deceptive confabulation.76 Along these control should modulate individual account- lines, Libet’s experiments on the timing of ability. To the extent that people are none- conscious intentions played a major role in theless able to prevent themselves from act- diminishing confidence in the belief that ing against the law, they seemingly have a du- conscious experience is involved in “initiat- ty to act in accordance to the law. What is the ing” people’s voluntary actions.77 threshold (i.e., what counts as a relevant trig- However, once biases, errors and limita- ger?) for the defence to apply? How much do tions in self-attributions are acknowledged, we actually know about the conscious experi- the neurobiological mechanisms regulating ence of acting? And to what extent should we the subjective experience of voluntarily doing consider people’s subjective reports a reliable something are still in search of a complete source of information about their sense of explanation. Findings on the neural corre- agency? For example, should the law take in- lates of the sense of agency suggest that it to account the subjective report of someone may represent a default mode of the human suggesting that she committed a crime while brain – differently from the sense of non- feeling she lost control over her own actions? agency (or the feeling of reduced control) Even assuming that the defendant aims to that produces a specific activation in the an- faithfully report her own inner feelings, it has gular gyrus.78 To explain and quantify the been suggested that people’s ability to intro- phenomenon, going beyond explicit subjec- spect upon their mental states is highly falla- tive reports, Haggard and colleagues have in- cious.72 Opacity of introspection seems to be troduced the so-called “intentional binding one of the obstacles that prevent the law effect”, which is interpreted as an implicit from fully incorporating something like a marker of the sense of agency.79 sense of agency requirement for criminal lia- The intentional binding effect reflects a bility. Furthermore, our sense of agency and subjective temporal association between vol- control has proven to be subjected to manip- untary actions and corresponding outcomes: ulation. Experimental evidence has shown when participants perform a voluntary ac- that people are less able to monitor their mo- tion, they tend to subjectively perceive the tor performance than the phenomenology of time between the action and the effect as agency suggests.73 shorter (i.e., temporal attraction, in mental For example, while undergoing laboratory time, of the action towards the effect and of based brain stimulation, people may report the effect towards the action) than it was in having experiences of moving where no real reality. Crucially, the effect is present only movement occurred (stimulating the right when the subject is engaging in voluntary ac- and left inferior parietal regions), or carry tions, being absent in cases of involuntary out actions without perceiving any sense of movements. Therefore, it is interpreted as an agency (stimulating the premotor-region).74 implicit marker of the sense of agency. By using unconscious priming as a form of Experimental evidence seemingly shows external guidance, experimenters are able to that the intentional binding effect might be consistently modulate people’s sense of agen- elicited by a combination of predictive (i.e., cy in ways that are then reflected in explicit prediction of the consequences of the action) reports of sense of control, e.g. by triggering and retrospective (i.e., outcome evaluation) overestimation of one’s own self-efficacy.75 inferential processes.80 In terms of its sources, More generally, within the perspective of the intentional binding effect might be pro- modern neuroscience, the sense of control- duced by the same circuits that enable the ling one’s own actions has been frequently performance (in the frontal lobe) and moni- considered the result of forms of “a posterio- toring (in the parietal cortex) of voluntary

Responsibility Between Neuroscience and Criminal Law 115 action.81 An important plausible consequence may lead the agent to lose control and of would be that the same circuits underlying the their relations with the mechanisms enabling preparation and initiation of voluntary actions voluntary behaviour would have therefore also produce a prediction of the expected out- the potential to refine the discussion about comes: our sense of agency, which is presum- the loss of control defence. ably linked to responsibility, might be not just a retrospective confabulation, but a «measur- █ Conclusions able signal within the motor system».82 More specific findings concerning the in- Neuroscience can contribute to further tentional binding effect are possibly relevant understanding of the cognitive capacities for how to understand the sense of agency in that an agent must display to be a fair target relation to the law. In particular, it has been of normative evaluations and practices, in- suggested that positive and morally relevant cluding punishment. In this paper, we sug- outcomes are associated with a stronger gested that the neuroscience of volition and sense of agency, with respect to negative and action is specifically relevant to the identifi- non-morally relevant outcomes.83 Interest- cation of the enabling conditions (and corre- ingly, the sense of agency, as measured by the sponding impairments) upon which volun- intentional binding effect, is attenuated in tary behaviour depends. In particular, by dis- situations where, in presence of fearful or an- cussing the loss of control defence as a case gry states, participants tend to experience study, we suggested that the empirical inves- themselves as less in control of the action tigation of the subjective feelings linked to they performed.84 the experience of being an agent could be po- These results could potentially help bridg- tentially informative for the law. Thus, we ing the gap between the subjective “experience advocate more cross-disciplinary work, aimed of losing control” and the “loss of control” de- to bridge the gap between conceptual bounda- fence, by providing additional tools to under- ries, on the theme of responsibility for actions. stand the mechanisms underlying action control. Consider, for example, the point that fol- █ Notes

lows. Morse suggests that the law has a re- 1 quirement for minimal rationality, which M.S. GAZZANIGA, The Ethical Brain: The Science 85 of Our Moral Dilemmas, Harper Perennial, New most adults are able to fulfil. If the agent re- York 2006. alises that, in given circumstances, she is una- 2 S.J. MORSE, New Neuroscience, Old Problems: Le- ble to control herself (i.e., she is victim of a gal Implications of Brain Science, in: «Cerebrum: persistent craving or desire which she finds The Dana Forum on Brain Science», vol. VI, n. 1, hard to resist) in a way that would potentially 2004, pp. 81-90. lead to law violation, it is her duty to take 3 A. LAVAZZA, L. SAMMICHELI, Il delitto nel cervel- some appropriate countermeasure in order to lo. La mente tra scienza e diritto, Codice Edizioni, prevent herself from actually violating the law Torino 2012; M. DE CARO, A. LAVAZZA, G. SAR- (e.g., by taking appropriate medicaments). As- TORI (a cura di), Quanto siamo responsabili? suming the agent has this opportunity, lack of Filosofia, neuroscienze e società, Codice Edizioni, control at the time of the wrongful act does Torino 2013. 4 J.D. GREENE, J. COHEN, For the Law, Neurosci- not necessarily count as an excuse. ence Changes Nothing and Everything, in: «Philo- The loss of control defence seemingly sophical Transactions of the Royal Society of challenges this conclusion since the wrong- London. Series B - Biological Sciences», vol. doer does not necessarily have evidence that CCCLIX, n. 1451, 2004, pp. 1775-1785. the fear or anger trigger will lead her to vio- 5 S.J. MORSE, New Neuroscience, Old Problems: Le- late the law (e.g., by killing the victim). A gal Implications of Brain Science, cit. 6 O.D. JONES, A.D. WAGNER, D.L. FAIGMAN, M.E. better understanding of the conditions that

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RAICHLE. Neuroscientists in Court, in: «Nature Re- York 1983. views Neuroscience», vol. XIV, n. 10, 2013, pp. 18 W. FRANKENA, Ethics, Prentice-Hall Incorpo- 730-736. rated, Upper Saddle River (NJ) 1963; M. 7 See Homicide Act, 1957, section 2(1) as amended SCHLICK, When is a Man Responsible?, in: B. by CJA 2009, Part 2, Ch. 1, Section 52. BEROFSKY (ed.), Free Will and Determinism, Har- 8 Y. YANG, A.L. GLENN, A. RAINE, Brain Abnor- per & Row, New York 1966, pp. 54-63; J.J.C. malities in Antisocial Individuals: Implications for SMART, Free-Will, Praise and Blame, in: «Mind», the Law, in: «Behavioral Sciences & The Law», vol. LXX, n. 279, 1961, pp. 291-306. vol. XXVI, n. 1, 2008, pp. 65-83. 19 Many have also claimed that the law could 9 W. MISCHEL, E.B. EBBESEN, A.R. ZEISS, Cognitive plausibly accommodate a deterministic concep- and Attentional Mechanisms in Delay of Gratifica- tion of responsible agency as long as voluntariness tion, in: «Journal of Personality and Social Psy- and rationality are preserved (S.J. MORSE, New chology», vol. XXI, n. 2, 1972, pp. 204-218. Neuroscience, Old Problems: Legal Implications of 10 E. FILEVICH, S. KÜHN, P. HAGGARD, Intentional Brain Science, cit.), but some scholars disagree. Inhibition in Human Action: The Power of “No”, in: For example, according to Halpin, criminal law «Neuroscience & Biobehavioral Reviews», vol. cannot accept the deterministic thesis (A. HAL- XXXVI, n. 4, 2012, pp. 1107-1118; A. GHOSH, J. PIN, Definition in the Criminal Law, Hart Publish- ROTHWELL, P. HAGGARD, Using Voluntary Motor ing, Portland (OR) 2004, pp. 62-63; P. CANE, Re- Commands to Inhibit Involuntary Arm Movements, sponsibility in Law and Morality. Hart Publishing, in: «Proceedings of the Royal Society. Section B – Portland (OR) 2002, pp. 66). Biological Sciences», vol. CCLXXXI, n. 1794, 2014, 20 A. ASHWORTH, Principles of Criminal Law, Ox- pp. 20141139. ford University Press, New York 2009, 6th edition, 11 Y. MUNAKATA, S.A. HERD, C.H. CHATHAM, p. 25. B.E. DEPUE, M.T. BANICH, R.C. O’REILLY, A Uni- 21 H.L.A. HART, The Ascription of Responsibility fied Framework for Inhibitory Control, in: and Rights, in: G. RYLE, A. FLEW (eds.), Proceed- «Trends in Cognitive Sciences», vol. XV, n. 10, ings of the Aristotelian Society, Blackwell, Hobo- 2011, pp. 453-459. ken (NJ) 1951, pp. 171-194. 12 A. DICKINSON, B. BALLEINE, The Role of Learn- 22 J. AUSTIN, A Plea for Excuses, in: «Proceedings ing in the Operation of Motivational Systems, in: H. of the Aristotelian Society», vol. LVII, 1956, pp. PASHLER (ed.), Stevens’ Handbook of Experimental 1-30. Psychology: Learning, Memory, and Emotion, 23 N. HUSAK, Philosophy of Criminal Law, Row- Wiley, Hoboken (NJ) 2002, pp. 497-533. man & Littlefield, Lanham 1987. 13 D.L. SCHACTER, E.F. LOFTUS, Memory and Law: 24 Significantly, the truth of nomological deter- What Can Cognitive Neuroscience Contribute?, in: minism by itself is never considered as a justifica- «Nature Neuroscience», vol. XVI, 2013, pp. 119- tion or an excuse for wrongdoing. 123. 25 See the Law Commission’s projects on Insanity 14 D. DAVIDSON, Essays on Actions and Events: and Automatism (discussion paper - July 2013) Philosophical Essays, Clarendon Press, Oxford and on Unfitness to Plead (discussion paper - Oc- 2001. tober 2015). 15 Intentions are not necessarily malevolent: mer- 26 See s. 2, Trial of Lunatic Acts, 1883, c. 38 (Reg- cy killing is an example of culpable act originated nal. 46_and_47_Vict). by non-malevolent intentions. Here we focus on 27 See M’Naghten’s Case, 1843, 10 Clark and Fin- culpable acts resulting from malevolent inten- nelly 200, 210, (1843) 8 ER 718, [1843-60] All ER tions. Rep 229. 16 M.S. MOORE, Act and Crime: The Philosophy of 28 «We think that people should be exempted Action and Its Implications for Criminal Law, Ox- from criminal responsibility for an offence if they ford University Press, New York 1993. lacked all criminal capacity, which means that 17 J.M. FISCHER, Desert and the Justification of they could not have avoided committing the Punishment, in: T.A. NADELHOFFER (ed.), The crime they are charged with because of a mental Future of Punishment, Oxford University Press, disorder or a physical disorder. In other words, New York 2013, pp. 3-24; P. VAN INWAGEN, An people who totally lacked capacity not to commit Essay on Free Will, Oxford University Press, New the crime charged, because of a medical condition

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and through no fault of their own, should have a Bowyer [2013]). The trigger can be related to the defence» (Criminal Liability: Insanity and Au- fear of serious violence (fear), a justifiable sense tomatism, Art. 70). of being wronged (anger), or both in cases where 29 See R v Sullivan [1984]. these feelings were not self-induced (S. PARSONS, 30 L. CLAYDON, Are There Lessons to Be Learned The Loss of Control Defence-Fit for Purpose?, in: from a More Scientific Approach to Mental Condi- «The Journal of Criminal Law», vol. LXXIX, n. tion Defences?, in: «International Journal of Law 2, 2015, pp. 94-101). and Psychiatry», vol. XXXV, n. 2, 2012, pp. 88-98. 48 See Homicide Act, cit., Ch. 11, Part 1, Section 3. 31 See R v Kemp [1957] 1 QB 399. 49 H.L.A. HART, The Ascription of Responsibility 32 See Bratty v A-G for NI [1963] AC 386. and Rights, cit., p. 227. 33 See R v Burgess [1991] 2 WLR 1206. 50 D. SHOEMAKER, Attributability, Answerability, 34 See R v Hennessy [1989] 1 WLR 287. and Accountability: Toward a Wider Theory of 35 J. HALL, The M’Naghten Rules and Proposed Al- Moral Responsibility, in: «Ethics», vol. CXXI, n. ternatives, in: «American Bar Association Jour- 3, 2011, pp. 602-632, here p. 616. nal», vol. XLIX, n. 10, 1963, pp. 960-964; M.S. 51 H.L.A. HART, Punishment and Responsibility: GUTTMACHER, The Psychiatrist as an Expert Wit- Essays in the Philosophy of Law, Oxford University ness, in: «The University of Chicago Law Re- Press, Oxford 2008, p. 90. view», vol. XXII, n. 2, 1955, pp. 325-330. 52 M.S. MOORE, Act and Crime: The Philosophy of 36 See Aristotle’s criteria for “involuntariness in Action and Its Implications for Criminal Law, cit., action” (ARISTOTLE, The Ethics of Aristotle: The pp. 4-5; J.L.J. EDWARDS, Automatism and Crimi- Nicomachean Ethics, Penguin Books, London nal Responsibility, in: «The Modern Law Re- 1955). view», vol. XXI, n. 4, 1958, pp. 375-386. 37 R v Windle [1952] 2QB 826 53 H.L.A. HART, Punishment and Responsibility: 38 J.M. FISCHER, M. RAVIZZA, Responsibility and Essays in the Philosophy of Law, cit., p. 92; J. AUS- Control: A Theory of Moral Responsibility, Cam- TIN, A Plea for Excuses, cit. bridge University Press, New York 1998; S. 54 J. AUSTIN, R. CAMPBELL, Lectures on Jurispru- WOLF, Freedom within Reason, Oxford University dence, Or, The Philosophy of Positive Law, Murray, Press, New York 1990. London 1885. 39 See R v Quick [1973] 3 WLR 26; R v Bingham 55 H.L.A. HART, Punishment and Responsibility: [1991] Crim LR 43; R v T [1990] Crim LR 256. Essays in the Philosophy of Law, cit., p. 106. 40 See Coley v R; McGhee v R; Harris v R. 56 J. AUSTIN, A Plea for Excuses, cit.; H.L.A. HART, 41 In Lord Denning’s words (Bratty v Attorney- The Ascription of Responsibility and Rights, cit. General for Northern Ireland (1963) AC 386): 57 G. YAFFE, Attempts: In the Philosophy of Action «No act is punishable if it is done involuntarily: and the Criminal Law, Oxford University Press, and an involuntary act in this context – some Oxford 2012, p. 215. people nowadays prefer to speak of it as “automa- 58 To appreciate the complexity of assessing omis- tism” – means an act which is done by the mus- sions, consider Fagan v MPC [1969] 1 QB 439 – a cles without any control by the mind, such as a case where the acquittal is due to the lack of “ac- spasm, a reflex action or a convulsion; or an act tus reus” (the defendant, who accidentally drove done by a person who is not conscious of what he onto a policeman’s foot, “did nothing”). is doing, such as an act done whilst suffering from 59 N. HUSAK, Philosophy of Criminal Law, cit., p. 170. a concussion or whilst sleepwalking». 60 A much discussed topic in theory of action, de- 42 See R v Martin John Bunch [2013]. viant causal chains offer an example of an inten- 43 See R v Golds [2014]. tional result obtained in a non-intentional way. In 44 See R v Brennan [2014]. particular, deviant causal chains identify those 45 See R v Stephen Andrew Dowds [2012]. processes in which one does not act intentionally, 46 See CJA 2009, Part 2, Ch. 1, Section 52. despite one’s action being caused by the very 47 Usually the defence is available when, in ex- same motivational states elicited by the intention tremely grave circumstances (see R v Hatter to act (D. DAVIDSON, Essays on Actions and Events: [2013]), the defendant has a sense of being seri- Philosophical Essays, cit., p. 73). Here is Chisholm’s ously wronged that can be determined objectively example: «Suppose, for example, (i) a certain man (see R v Dawes, [2013]; R v Clinton [2012]; R v desires to inherit a fortune; (ii) he believes that, if

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