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Subjectivism and Objectivism in the Criminal Law: an Examination of the Limits of Recklessness and Negligence

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Subjectivism and Objectivism in the Criminal Law: an Examination of the Limits of Recklessness and Negligence Subjectivism and Objectivism in the Criminal Law: an examination of the limits of recklessness and negligence. Catherine Crosby A thesis submitted in partial fulfilment of the requirements of Teesside University for the degree of Doctor of Philosophy. October 2013. Declaration I confirm that the thesis conforms to the prescribed word length for the degree for which I am submitting it for examination. I confirm that no part of the material offered has previously been submitted by me for a degree in this or in any other University. If material has been generated through joint work, my independent contribution has been clearly indicated. In all other cases material from the work of others has been acknowledged and quotations and paraphrases suitably indicated. i Acknowledgements I would like to express my gratitude to those who have played a significant role in the production of this thesis. Thanks are due to Professor Alisdair Gillespie, Dr Mark Simpson and Dr Anne Lodge for their encouragement and comments on drafts of this work. Particular thanks are due to my friend and colleague, Helen Howard, for being my ‘sounding board’ throughout the production of this work, for her insightful comments and her unrelenting patience. Thanks also go my family, particularly Mikhaila, Natasha, and my parents, and to Angela for her proof reading. ii Contents Declaration ......................................................................................................................................... i Acknowledgements ………………………………………………………...………………..…….ii Table of Cases…………………….…….………………………………………………………....vii Table of Legislation………………………………………………………………………………viii Abstract.............................................................................................................................................. x Introduction ........................................................................................................................................... 1 1.1 Introduction to the thesis: aims and objectives ........................................................................ 1 1.2 Defining Mens Rea - intention, oblique intention, recklessness, and criminal negligence .... 4 1.2.1 Mens Rea .......................................................................................................................... 4 1.2.1.1 Subjective and objective approaches to mens rea .......................................................... 4 1.2.2 Intention ............................................................................................................................ 6 1.2.3 Recklessness ..................................................................................................................... 6 1.2.4 Negligence ........................................................................................................................ 8 1.2.5 Culpability Theories .......................................................................................................... 9 1.3 Methodology .............................................................................................................................. 10 1.4 Overview of the thesis ............................................................................................................... 13 2.1 Introduction to Chapter Two ................................................................................................... 17 2.2 Mens Rea ................................................................................................................................... 18 2.2.1 Mens Rea and Moral Blameworthiness .......................................................................... 22 2.2.2 Mens Rea as Legal Fault ................................................................................................. 26 2.2.3 Should mens rea be subjective or objective? .................................................................. 28 2.2.3.1 Subjectivism ................................................................................................................. 29 2.2.3.2 Objectivism .................................................................................................................. 30 2.2.3.3 Beyond subjectivism and objectivism -taking account of emotions and desires ......... 32 2.2.3.4 The subjective/objective debate within recklessness ................................................... 33 2.2.3.5 Interpreting the ‘subjective’/’objective’ labels ............................................................ 34 2.3 Theories of culpability - an overview ...................................................................................... 37 2.4 Choice Theory ........................................................................................................................... 39 2.4.1 The meaning of ‘choice’ ...................................................................................................... 41 2.4.2 The role of luck or chance and choice theory ...................................................................... 44 2.4.3 Choice Theory, intention and recklessness .......................................................................... 46 2.4.4 Choice theory and negligence .............................................................................................. 47 2.4.5 Choice theory and ‘stupidity’ ............................................................................................... 50 2.4.6 Flaws in the choice theorists approach................................................................................. 50 2.4.7 Self-induced intoxication ..................................................................................................... 52 iii 2.4.8 ‘Fair opportunity’ ................................................................................................................. 54 2.4.9 Moral agency and the capacity for moral responsiveness .................................................... 55 2.4.10 The relevance of emotions to choice .................................................................................. 57 2.4.11 Spontaneity and the way harm is caused ............................................................................ 58 2.5 Character Theory ..................................................................................................................... 59 2.5.1 Responsibility for character ................................................................................................. 63 2.5.1.1 Determinate and determinable dispositions ................................................................. 64 2.5.2 The requirement of an act .................................................................................................... 68 2.5.3 Character theory, Kingston, and determining what is ‘character’ ........................................ 70 2.5.4 A destabilisation defence ..................................................................................................... 74 2.5.5 A broader view of character traits and acting ‘out of character’ .......................................... 76 2.5.6 Character theory and the mentally disordered ..................................................................... 77 2.5.7 Character theory and the capacity for moral responsiveness ............................................... 79 2.5.8 Flaws in the character theorists approach ............................................................................ 80 2.5.9 Character and action............................................................................................................. 82 2.5.10 The ‘out of character’ problem .......................................................................................... 82 2.5.11 What is ‘character’? ........................................................................................................... 84 2.5.12 The extent of responsibility for our characters .................................................................. 86 2.5.13 Moore’s critique of five claims advanced by character theorists ....................................... 89 2.5.14 Liability for negligence ...................................................................................................... 92 2.5.15 Mens Rea and Character Theory ........................................................................................ 93 2.6 Choice or character theory as a sufficient basis for criminal liability ................................. 96 2.7 Alternative theories: ................................................................................................................. 98 2.7.1 The ‘role’ theory of culpability ............................................................................................ 98 2.7.2 The manifestation of vices ................................................................................................. 103 2.7.3 Aristotle’s virtues and vices ............................................................................................... 103 2.7.4 ‘Agency’ Theory ................................................................................................................ 104 2.7.5 A ‘first-person’ approach to culpability ............................................................................. 106 2.8 Mens Rea - The relationship between mens rea and culpability ......................................... 107 2.8.1 A single mental state of ‘recklessness as insufficient concern’ ........................................
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