A. P. Simester’s research while affiliated with Uppsala University and other places

We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.

This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary (albeit insufficient) condition of legitimate criminalisation that φing is what we call bare wrongful—that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince.

This chapter addresses the differences between justifications and excuses, their respective characters and basic structures. It argues that justifications and 'rationale-based' excuses such as duress are fundamentally similar, and that their differences have relatively few implications for the criminal law. It is often claimed that justifications are 'about the act' and excuses 'about the actor': but they are about both - and equally so. Both rationalebased excuses and justifications are personal, and impersonal, alike to the actor. While their differences track a categorical moral distinction about the normative status of an agent's conduct, the main driver of that difference is whether the agent's rationale for acting was, or was not, what Raz calls an 'excluded' reason. If not excluded, a justification may well lie. Even if excluded, it may ground an excuse. So there are key differences in how, morally speaking, the defendant's rationale is relevant to her exculpation. But that same rationale leads in either case to blameless acquittal. The starting point is the same. The end point is the same. There are some idiosyncratic stop signs, but basically the difference is the routes. It is argued that there is no fundamental difference of output in the criminal law, at least for individual defendants. Rather, from the perspective of the law, the main differential consequence regards actions by the state. State action may be justifiable, but it is inexcusable.

Many criminal theorists agree that conviction of a criminal offence, or at least of a stigmatic criminal offence, should not normally occur unless the accused is culpable with respect to that offence. Not everyone thinks this. Some writers, for example, hold that once an offender goes through a ‘gateway’ of wrongdoing, she may legitimately be held criminally liable for consequences that flow from her initial wrongful action, without being culpable specifically for those further consequences. Indeed, similar thinking lies behind traditional doctrines of felony-murder. But even those writers generally accept that the offender should in principle be culpable with respect to the initial action. There must, they agree, be some culpability, somewhere, to legitimate conviction for a serious criminal offence. My concern in this chapter is with the underlying question: when is a person culpable? Conventionally, the ascription of culpability or blame is thought to rest upon findings of mens rea. And it is certainly true that mens rea elements have a role to play in establishing culpability. Yet how they do so remains obscure. Part of the problem is that many existing accounts seek a comprehensive but false unity. They tend not to separate positive from negative criteria; responsibility from culpability; capacity-based from circumstance-based exculpations; and, most importantly of all, choice-based accounts from other explanations of blame. As we shall see, a less integrated approach, with two alternative bases of culpability, may be more perspicuous.

Just as in the Indian Penal Code, the intoxication provisions contained in ss. 85 and 86 of the Singaporean and Malaysian Penal Codes are described as ‘General Exceptions’, suggesting that they operate as affirmative (or ‘supervening’) substantive-law defences to criminal liability. It is argued in this article, however, that the primary function of these provisions is not to create a distinct legal defence. Rather, it is to enable the courts to convict persons who do not satisfy the mens rea requireents of a crime, when their lack of mens rea is because of intoxication. The sections permit us to treat such defendants as having mens rea when in fact they do not. As such, the provisions are mainly inculpatory, not exculpatory. They assist the prosecution, not the defendant. This claim will be defended both in principle and in terms of statutory interpretation. This article also discusses certain exceptions, where intoxication does operate as a true supervening defence.

This article reviews the offence of causing death by driving while uninsured, unlicensed or disqualified and challenges the courts' approach to causation in interpreting the offence. © 2012 Thomson Reuters (Professional) UK Limited and Contributors.

Everyone agrees that mens rea is relevant to fault. The maxim actus non fit reus nisi mens sit rea has been around for centuries.1 According to foundational principles of the criminal law, it is normally not enough to support a conviction that D perpetrates the actus reus. Neither should it be. Causing harm to another person may be unfortunate, but the moral turpitude associated with a criminal conviction requires some element of fault. And to show that, we need mens rea.