The Gazette 1983

GAZETTE

JULY/AUGUST

198

a general principle of fairness to individuals who are

criminal defendants. In this respect the cryptic rationale

propounded by Holmes

J.in

McBoyle v. United States

apposite:

"Although it is not likely that a criminal will carefully

consider the text of the law before he murders or steals,

it is reasonable that a fair warning should be given to the

world in language that the common world will under-

stand, of what the law intends to do if a certain line is

passed. To make the warning fair, so far as possible, the

law should be clear".

This may be explicated in the terms underpinning

'Callaghan

Within its jurisdiction the State constitu-

tionally monopolises the legitimate use of force. Criminal

laws in the ordinary course of things, are backed up by

coercive penalties which are viewed as reasonably due to

those who fail in certain ways to comply with prescribed

standards. The infliction of such punishments, as

imprisonment and fine, demands an analysis of the

principles of fairness which ought to govern their

application. The goal would be to achieve the effective

operation of the criminal law intended to secure com-

pliance with standards of a reasonable community life. In

view of Articles 40.1 and 40.4.1°, as informed by the

preamble of the Constitution, this effort must be

consistent with respecting individuals as ends and not as

means. The dignity and freedom of individuals must be

guaranteed in the sense that they are assured that they have

the liberty and opportunity to arrange their lives in

accordance with their conception of freely chosen ends.

Accordingly, individual! must be accorded the greatest

equal liberty and opportunity to ascertain what precisely is

subject by law to the taint of criminality. Criminal

standards that are so defined that all individuals are given

the greatest equal liberty and opportunity to govern their

behaviour in compliance with the standards accord equal

respect to each individual as ap end in himself. However, a

vague and overbroad criminal proscription violates this

basic principle.

The conditions of criminal responsibility: actus

reus and mens rea

In the criminal setting, the word "responsibility"

conveys the idea of being blameworthy under applicable

legal standards for some action or class of actions. Above,

the requirement that the applicable legal standards be

fairly ascertainable, was examined. In this part the

conditions of criminal responsibility, are further

described. The principle of legality emphasises the

primacy of the individual as a responsible moral agent.

This subjective focus has been sustained in recent

decisions emphasising the mental factors that figure in

voluntary choice and personal blameworthiness.

It is

suggested that these are precisely the factors that a consti-

tutional theory reaffirming individual moral autonomy

should stress. Thus the requirements of

actus reus, mens

rea

and their coincidence are considered below.

(a) Actus reus

The requirement of

actus reus

for culpability in the

criminal law is guaranteed by a number of consitutional

provisions which either expressly or implicitly exclude

certain bases of criminal responsibility. For example,

Article 44.2 of the Constitution would vitiate the basis of

any law proscribing the exercise of a religious faith.

Furthermore, in

King,

the punishment of an individual for

a mere personal condition, as opposed to any act or

ommission, was assailed successfully. There the Supreme

Court struck out a statute which permitted the punish-

ment of a person who had been convicted of being a

"suspected person", which meant a person having

previous convictions, found loitering. It will be recalled

that Hency J. inveighed against the ingredients of the

offence as being arbitrary, vague, virtually irrebutable, so

related to reputation,

"so ambiguous in failing to distinguish

between apparent and real behaviour of a criminal nature",

that they were plainly unconstitutional. This decision

underpins the insight that the concept of innocence in this

legal system is a substantive constitutional one. The

requirement of

actus reus

requires voluntary conduct as a

condition for the imposition of punishment; and conduct

may involve an act or omission or possession.

It was noted earlier that criminal due process prescribes

that the individual be considered as a responsible moral

agent. Articles 40.1 and 40.4.1° of the Constitution, as

informed by the Preamble, were interpreted as mandating

that the individual's liberty and opportunity to comply

with the law and predict the consequences of his or her

actions be maximised. The notion of

actus reus

guarantees

the individual liberty from criminal punishment unless he

or she has freely chosen to violate a law which rests on a

constitutionally adequate basis. As a core feature of crime

definition it assures the greatest equal liberty to all in

planning their conduct and assessing the legal conse-

quences of that conduct. Thus it respects the individual as

an end rather than a means. In its operation it evinces a

concern for evidence of personal intention to violate a

criminal proscription, a concern that such intentions be

manifest in provable conduct, and a concern that the legis-

lature be seen to confine proscriptions within constitu-

tionally permissible limits.

(b) Mens rea

The analysis offered above is consonant with that

carried out by H. L. A. Hart.

Hart argued that utilitarian

aims justify the general practice of punishment in

particular cases must be restricted by an independent

imperative to treat people as ends rather than means. In

other words the conditions of criminal responsibility must

respect individual autonomy. Accordingly, punishment

may not be applied to an individual, even when it would

efficiently further the general welfare, unless the

individual has voluntarily committed an offence.

Constitutional tradition seems to guarantee that our

system of criminal justice will pursue this critical moral

approach. Hart explained that the moral importance of the

restriction of punishment to the offender cannot be

explained as merely a consequence of utilitarian objectives.

Human society, he observes, is a society of persons, and

"persons do not view themselves or each other merely

as so many bodies moving in ways which are sometimes

harmful and have to be prevented or altered. Instead

persons interpret each other's movements as manifesta-

tions of intentions . . .".

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