The Gazette 1983

GAZETTE

JULY/AUGUST

198

In this regard, criteria of criminal responsibility require

the carrying out of a voluntary act or omission or

possession by the individual. The law also recognises the

existence of mental elements accompanying such

acts. Animating the concept of

mens rea

, those elements

comprise intention, recklessness, or negligence. These

factors indicate that the individual, who has committed an

offence, had the capacity to take into account the relevant

norms that responsible moral agents consider, or assume,

in their own evaluation of the criminal significance of their

behaviour. The range of blameworthy attitudes on the part

of an offender goes from carelessness to knowledge to

intention. Intentional acts emanate from deliberate human

design. They are a proper condition of criminal responsi-

bility since they express moral autonomy. Recklessness

and negligence do not directly reflect human plans and

thus they constitute a lower degree of blameworthiness.

However, a person exercising the capacities of reasonable

care associated with deliberate human action could have

avoided the harm effected and the punishment

imposed. As Hart points out, the word

negligently

"makes

an essential reference to an omission to do what is thus

required". Recklessness involves a more conscious under-

taking of a harm-effecting risk. Since the agent has a

greater liberty and opportunity to avoid the harm,

recklessness is more blameworthy than negligence.

Two consequences of this Subjective emphasis invite

brief comment. Firstly, acceptance of the proposition that

negligence may properly form a requirement of

mens rea

does not stand in opposition to respect for individual

autonomy. Let us return to Hart's thinking. Hart favours

extending the notion of

mens

beyond the cognitive element

of knowledge or foresight, so as to encompass the

capacities and powers of normal persons to think about and

control their conduct, he would endorse Stephen J.'s

approach in the famous

Tolson

case and include negligence

mens rea

because "it is essentially a failure to exercise

such capacities".

Hart argues that when we say that an

individual acted negligently we are in fact being quite

specific: "we are referring to the fact that the agent failed to

comply with a standard of conduct with which any

ordinary reasonable [person]

could

and

would

have

complied: a standard requiring him to take precautions

against harm".

It is clear that this does not reject a

subjective focus. Hart puts the matter pithily:

"The kind of evidence we have to go upon in dis-

tinguishing those omissions to attend to, or examine, or

think about the situation, and to assess its risks before

acting, which we treat as culpable, from those omissions

{e.g.

on the part of infants or mentally deficient persons)

for which we do not hold the agent responsible, is not

different from the evidence we have to use whenever we

say of anybody who has failed to do something 'He

could not have done it* or 'He could have done it'. The

evidence in such cases relates to the general capacities of

the agent; it is drawn, not only from the facts of the

instant case, but from many sources, such as his

previous behaviour, the known effect upon him of

instruction or punishment, etc.".

Secondly, this constitutional framework would require

that the law of criminal responsibility recognise various

excuses and justifications.

In particular, it would provide

an independent perspective through which the essential

character of the insanity defence might be appreciated.

Certain observers have urged the elimination of responsi-

bility as an operational construct in the legal scheme of

things and a change to a therapeutic regime in which all

liability is strict.

The adoption of such a system would

negate the moral premise that the individual is an

autonomous moral personality. As Hart suggests, "we

should lose the ability which the present system in some

degrees guarantees us, to predict and plan the future

course of our lives within the coercive framework of the

law".

Under current law the

actus reus

requirement does

not include forms of involuntary conduct

{e.g.

epileptic

convulsions) and insanity may in certain circumstances

involve such conduct. However, even if an offender meets

the requirements of

mens rea

in the sense of intention,

recklessness or negligence, insanity should still provide an

excuse. Earlier a principle is stated that individuals should

only be intruded upon by the criminal law if they have

been given the greatest equal liberty and opportunity to

avoid punishments if they so wish. The imposition of

punishment on insane persons would violate this notion of

distributive justice in the criminal law. The insane

individual does not possess the capacity to conform his or

her conduct to criminal standards, so he or she cannot

fairly be punished. Our criminal jurisprudence evinces a

judicial preparedness to infuse the law of insanity with

modern medical insights.

The proper form of the defence

will depend on assessments regarding human capacity. For

the purpose of this article, however, it may reasonably be

suggested that the defence as a requirement of fairness has

constitutional justification.

Concluding this part, I may state that the requirements

actus reus

and

mens rea

respect the individual as the

ultimate entity of moral value. The principle of the greatest

equal liberty and opportunity under Articles 40.1 and

40.4.1 ° of the Constitution respects the individual's ability

to predict and plan the future course of his or her life

consistent with the like liberty for all other humans.

Therefore, the distribution of punishments, which are

frustrations of personal liberty, must be organised in a way

which accords the greatest equal liberty, opportunity and

capacity to people to avoid such punishments, if they

choose, or to undergo them, if that is the cost of their acting

according to their own dictates.

The principle of proportionality

It is notable that, consistent with its focus upon the

individual as an autonomous moral personality, constitu-

tional principle requires that punishment should be in

proportion to the blameworthiness of the decisive

informing circumstance of criminal culpability, and

derivatively as a proper element of sentencing discretion in

the hands of judges. The trial constitutes an individualised

hearing procedure which advances the cause of personal

dignity and autonomy, and ensures that the individual

convicted of an offence will be dealt with as a uniquely

moral being. In this respect, the principle of propor-

tionality obviously demands a determinate scale of punish-

ment for a particular type of offence, but, within the limits

thus set, fair sentencing discretion has an essential role.

It is necessary now to explain the requirement of

proportionality between the relative seriousness of the

offence and the relative harshness of punishment. The

criminal law seeks to satisfy the demands of certain moral

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