Barry Mitchell1

The Minimum Culpability for

Criminal Homicide2
1. INTRODUCTION
Most jurisdictions throughout the world reflect variations in the moral culpability of
homicides by formally recognizing separate offences, usually attracting different sentencing provisions. In England, this is done on the apparently well-founded assumption
that the general public recognises that there is sufficient variation in the gravity of some
homicides to warrant such a distinction.3 A range of offence characteristics are used
to make the distinction. Differences in the cognitive elements are a common device,
such that intentional killing is indicative of the more serious forms of homicide whereas
reckless or negligent killings are less serious. Some jurisdictions refer to motive in
offence definitions: in Germany, for example, murder includes killing to satisfy a sexual
urge, from greed or from other base motives .4 A not dissimilar characteristic is seen
in the so-called felony-murder rule adopted by some states in the USA, by which
homicides committed in the course of certain felonies such as rape, robbery, arson
etc. are automatically classed as particularly serious. Then again, the French Penal Code
regards the torturing of the victim or making the victim endure lengthy suffering as
an aggravating factor.5
1.
2.
3.

4.

5.

Reader in Criminal Justice, Coventry University, England.

This article is a fuller account of a paper given by the author at the Max-Planck-Institut fr
Auslndisches und Internationales Strafrecht in May 2001.
The Criminal Law Revision Committee, for example, thought that the abolition of the distinction
between murder and manslaughter would lead people to think that the law had been weakened and
that the law no longer regarded the intentional taking of anothers life as being especially grave;
see Criminal Law Revision Committee, Fourteenth Report: Offences against the Person (London 1980)
Cmnd 7844, para. 15. Evidence of public support in England and Wales for separate homicide offences
can be found in B. Mitchell, Public Perceptions of Homicide and Criminal Justice, 38(3) British
Journal of Criminology (1998) pp. 453472.
See paragraph 211(2) of the German Penal Code. The French Penal Code includes among its crimes
against humanity the systematic killing of a group of people for political, philosophical, racial or
religious motives (see Article 212-1). In slight contrast, English law makes no such reference in the
offence definitions, but some allowance is made for what are perceived as good motives through
the availability of defences such as self-defence, prevention of crime, and duress.
This is in line with the argument put forward by Andrew von Hirsch and Nils Jareborg that the
gravity of any crime is determined by a combination of the (actual or threatened) harm and the
offenders moral culpability; see their Gauging Criminal Harm: A Living Standards Analysis, 1 Oxford
Journal of Legal Studies (1991) p. 1.

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This article is concerned with the first of these characteristics, the killers moral
culpability. In 1996, the English Law Commission recommended the abolition of one
variety of involuntary manslaughter, namely unlawful and dangerous act manslaughter,6
on the ground that there is insufficient moral blameworthiness for causing death
the defendant need not be aware of the risk of causing any personal harm at all; all
that is required is that a reasonable person would have foreseen the risk of doing
some (not serious) harm.7 This fundamental issue has also been the focus of much
criticism in England of murder, conviction for which is possible if the killer intended
to seriously injure anyone; there is no need for an intention to kill or even an awareness of the risk of killing.8 However, before addressing that subject directly, it is
necessary to consider some fundamental theoretical issues which underpin the criminal
law generally and are not confined to homicide.

2. RELEVANT PRINCIPLES AND THEORIES OF RESPONSIBILITY

Even a relatively cursory glance at the criminal law of most jurisdictions, be they
common law or civil code based, reveals a set of principles and offences which vary
in their structure and nature. More specifically, they contain tests of legal liability which
differ in the sense that some are (at least apparently) subjective whereas others are
objective. The former are primarily concerned with assessing a persons guilt by reference to what (s)he was thinking or aware of, in contrast to the latter which focus
not on the accused but on what some hypothetical reasonable person would have
thought in the same circumstances. Yet some English lawyers such as Richard Tur have
warned against using the concepts of subjectivism and objectivism as indicators of
the true nature of the tests of culpability.9 Each of them, it is claimed has its defects
and problems. But rather than examine these defects it is worth briefly looking more
closely at what subjectivism and objectivism represent.
The traditional view is that subjectivism implies that a person should foresee harm
if (s)he is to be properly convicted of an offence of causing that harm. Thus, I should
only be liable for a homicide offence if I intended or foresaw death as at least a possible
consequence of my action. The assertion that a person ought to have foreseen harm
which (s)he did not in fact foresee is prima facie objectivist, but that, it is submitted,
would be a false interpretation. Where a person has the capacity to foresee harm but
fails to exercise that capacity, the criticism that (s)he ought to have foreseen it is

6.

7.
8.
9.

In these cases the defendant must be committing a crime rather than a civil offence, but it may be
only a very minor crime. In practice, such defendants are usually committing some form of offence
against the person, but in law this type of manslaughter is not restricted to such crimes.
Law Commission, Legislating the Criminal Code: Involuntary Manslaughter (London 1996) Law Com
No. 237, especially paras. 5.145.16.
This point was specifically debated by the House of Lords in R. v. Cunningham [1982] AC 566.
See R.H.S. Tur, Subjectivism and Objectivism: Towards Synthesis, in S. Shute, J. Gardner and J.
Horder, eds., Action and Value in Criminal Law (Oxford 1992) pp. 213237. Tur refers to the increasing
popularity of subjectivism, certainly amongst English lawyers, in the latter part of the twentieth century,
but there are signs of a more recent move away from it, as will be apparent from this article.

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better regarded as subjectivist.10 The focus of the laws attention is still on the
defendant and his/her characteristics: we are critical of the defendant because (s)he
neglected to do something which (s)he was quite capable of doing; what the hypothetical reasonable individual would have foreseen in the same circumstances is wholly
irrelevant.11 Interestingly, such a view tends to be seen as objectivist, especially by
those who have argued against subjectivism!
Pure objectivism ignores the accuseds personal characteristics and simply compares
him/her with the hypothetical reasonable person. This is illustrated by the way in which
the English courts used to determine whether a person charged with murder had reacted
reasonably to the provocation on which (s)he relied. 12 However, the House of Lords
then changed this by imposing what has often been described as a subjective gloss
on the objective test which required the courts to consider how a reasonable man
having the power of self-control of an ordinary person of the sex and age of the
accused, but in other respects sharing such of the accuseds characteristics as [the
jury] think would affect the gravity of the provocation to him.13 The late Lord Diplock
clearly disliked the tendency amongst lawyers to describe legal tests as subjective or
objective,14 and further potential evidence in support is arguably found in the very recent
House of Lords decision in Smith (Morgan James)15 where the majority effectively
redefined the test as whether, taking into account whatever personal characteristics
the jury decided were relevant, it was reasonable for the particular defendant to have
reacted to the provocation as (s)he did. In sum, attaching labels to the law is likely
to be unhelpful. What is much more significant is determining the kind of approach
the law should adopt towards human behaviour and the way it should be judged.
The dominant philosophy on which many criminal or penal systems are based is
the capacity theory of responsibility, the current understanding of which owes much
to the writings of Professor Hart.16 Whatever the merits of determinism, the criminal
law is based on the assumption that the vast majority of people have the ability to
choose whether to conform their behaviour to the laws expectations. In accordance
with this, Harts view was that provided a person has the capacity to freely choose
to exercise free will and has a fair opportunity to comply with the law, the legal
system is justified in holding that person responsible for what (s)he has done. The
capacity theory of responsibility is clearly consistent with what has been widely referred
to as a subjectivist approach to liability, and it is also in keeping with the principle
of individual autonomy, but its one obvious drawback is the lack of scientific data to
10. This argument is not particularly novel or even radical. It has been asserted by leading criminal lawyers;
see, for example, A. Ashworth, Principles of Criminal Law (Oxford 1999), 3rd edition, p. 198.
11. Indeed, the defendant might, of course, possess a characteristic which gives him/her a capacity to
perceive a risk of harm which the hypothetical reasonable individual would not have been able to
recognise.
12. This was the old law under the rule in Bedder v. DPP [1954] 1 WLR 1119.
13. See DPP v. Camplin [1978] AC 705 at 712.
14. See especially R. v. Caldwell [1982] AC 341 at 353, where Lord Diplock commented that that
questions of criminal liability are seldom solved by simply asking whether the test is subjective or
objective.
15. [2000] 3 W.L.R. 654. The leading speech for the majority was delivered by Lord Hoffman.
16. See H.L.A. Hart, Punishment and Responsibility (Oxford 1968); and Varieties of Responsibility,
83 Law Quarterly Review (1967) p. 346.

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enable us to make a confident assessment of any individuals capacity to exercise

the self-control presumed by the law. It is true that some progress is being made on
this issue, but it is slow and there is an enormous amount of work which remains to
be done.17
Sadly, those who advocate an objectivist approach to liability tend to either ignore
capacity altogether or reveal some muddled thinking about it. Thus, for example, in
relation to excuses, Professor Gardner appears to rely on a singularly simplistic view
of capacity according to which a person who has the capacity to behave in a particular way in the circumstances will behave in that way; if (s)he does not, then there
can be no capacity to do otherwise.18 Admittedly, he makes these claims in the context
of discussing self-defence, more specifically the use of excessive force in self-defence
and the desire for soldiers to be courageous,19 and subsequently considering the
relationship between capacity and fitness to fulfil certain roles in life. The only other
reference he makes to capacity is to those who, through no fault of their own, are so
unfit to fulfil their roles that they bear no responsibility for their actions. It is, of
course, arguable that very little of this is relevant to the question of foresight of the
consequences of our behaviour, but there is a conspicuous absence of any attempt to
address the scientific data available. Had he done so, he would have appreciated that,
regardless of the need for much more research in the area, we cannot assume that

17. Nevertheless, there is evidence of a link between violence and genetic make-up (see H.G. Brunner,
M.R. Nelen, P. van Zandvoort, N.G.G.M. Abeling, A.H. van Gennip, E.C. Wolters, M.A. Kuiper,
H.H. Ropers and B.A. van Oost, X-Linked Borderline Mental Retardation with Prominent Behavioral
Disturbance: Phenotype, Genetic Localization, and Evidence for Disturbed Monoamine Metabolism,
52 American Journal of Human Genetics (1993) pp. 10321039; and evidence that violence is also
associated with low levels of the neuro-transmitter serotonin (see M. Virkkunen, J. Dejong, J. Bartkko,
F.K. Goodwin and M. Linnoila, Relationship of Psychobiological Variables to Recidivism in Violent
Offenders and Impulsive Fire-setters, 46 Archives of General Psychiatry (1989) pp. 600603. Current
dominant thinking in clinical psychology stresses the importance of inhibited or distorted cognitive
processes in emotional arousal; see, for example, R.W. Novaco, Remediating anger and aggression
with violent offenders, 2 Legal and Criminological Psychology (1997) pp. 7788.
18. J. Gardner, The Gist of Excuses, 1 Buffalo Criminal Law Review (1998) p. 575 at pp. 580585.
19. Professor Gardner reveals the simplicity of his view of human capacity when he asserts [i]f one
sees the world through genuinely courageous eyes one does not see the danger to oneself the way
that more cowardly people see it, as a threat, but rather as a challenge, something which, up to a
point, one inclines towards rather than away from, J. Gardner, loc. cit., p. 582. The truth is that we
simply do not fully understand why some people are braver than others. Moreover, people may
behave courageously when faced with a particular set of circumstances simply because at the critical
moment they focused more on the need to (seek to) prevent some other harm than on the danger to
himself. We do not know how far they focus on the harm to others rather than themselves is a matter
of chance rather than a manifestation of some aspect of their personality which enables them to be
brave. Another person may, on that occasion have focused instead on the danger to himself, but on
a subsequent occasion would have shown the same degree of fortitude as the courageous person.
The second person does not necessarily have a lesser capacity for being courageous. Moreover, many
incidents which reveal courageous acts occur, like the case of Clegg [1995] 1 All ER 334 on which
Professor Gardners discussion is loosely based, in a matter of seconds. Whether on that specific
occasion the individual focused on the danger to others rather than himself cannot be treated as
conclusive evidence of his capacity. The second, seemingly more cowardly person may have shown
more courage had he been given more time in which to assess the situation and appreciate the danger
to others. Human behaviour is surely not as black or white as Professor Gardner implies.

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what we do and what we think on any specific occasion necessarily manifests our
ability. We may certainly have the ability to foresee a risk even though we fail to
exercise it. Quite how we behave in a particular instance almost certainly depends
on a combination of factors and influences which fluctuate over time. Our ability to
reveal virtuous or desirable characteristics may well vary according to what has been
happening in our lives at that time. It is not uncommon to find that crimes are
committed, including homicides, after the offenders have endured not one or two but
a series of personal traumas or very serious difficulties.20 The possibility that some
of these offences would not have occurred but for those traumas or difficulties should
not be lightly dismissed.
Professor Gardner also states that people may have the capacity to learn to be
more courageous or to acquire skills which enable them to behave in a more socially
desirable manner.21 This is surely correct, as far as it goes, but we should distinguish
between the various factors which appear to influence our behaviour. Obviously, the
normal process of maturation normally brings with it an increased ability and knowledge which enables us to cope better with a wider range of circumstances. Then
again, an encouraging illustration of the sort of thing that Professor Gardner may
have in mind is the work of psychiatrists and clinical psychologists in helping some
aggressive offenders to learn to exercise greater self-control and manage their anger
so as to avoid reacting with violence.22 Yet it is almost certainly true that some behavioural influences, such as genetic make-up, effectively negate the possibility of
developing these skills or, at the very least, severely curtail it. Clearly, this is not the
place to rehearse the nature-nurture debate, but there can be no doubt that our
psychological and medical characteristics our bricks and mortar limit our capacity
to change our behaviour.
The major alternative theory is the character theory which bases responsibility upon
judgments about the character of the agent: actions for which we hold a person fully
responsible are those in which his/her usual character is centrally expressed. 23 Thus,
for example, a person who acts under duress is not exhibiting his/her usual character
and since (s)he has been forced24 to behave in a particular way we do not prima facie
regard his/her character as flawed. Recently, Professor Lacey has suggested a varia-

20. This became apparent, for example, during my analysis of a sample of cases in which patients who
had killed were psychiatrically assessed for the purposes of a diminished responsibility plea (see B.
Mitchell, Diminished Responsibility Manslaughter, 8 Journal of Forensic Psychiatry (1997) pp.
101117, and from discussions with forensic psychiatrists who had assessed similar patients (see B.
Mitchell, Puting Diminished Responsibility Law into Practice: A Forensic Psychiatric Perspective,
8 Journal of Forensic Psychiatry (1997) pp. 620626.
21. J. Gardner, loc. cit., p. 583.
22. See, for example, A.P. Goldstein and H. Keller, Aggressive Behavior: Assessment and Intervention
(Elmsford, New York 1987).
23. See N. Lacey, State Punishment: Political Principles and Community Values (London 1988) p. 66.
For an interesting critique of the character theory in relation to excuses see J. Gardner, loc. cit.,
pp. 575579.
24. In the sense that, whilst the individual knows what (s)he is doing and prima facie intends to do it,
the threat/duress means that the behaviour is morally involuntary.

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tion on this, in the form of what she calls the reasons approach.25 Both theories
effectively put the emphasis on the individuals motive in that what is perceived as a
good motive either tends to negate a flawed character or provide a justification for
the behaviour. Although, as indicated in the Introduction, some jurisdictions expressly
refer to motive in offence definitions, English law has been very way about this.
Admittedly it allows a limited number of good motives to provide a defence, but it
tends to the view that there is sometimes no real consensus about what constitutes a
good or bad motive, and even where there is some degree of superficial consensus,
it may be unclear whether there is sufficient sympathy for an apparently good motive
to warrant an acquittal or whether instead it should merely be treated as mitigation
of sentence. Furthermore, identifying a satisfactory definition of a good motive is
sometimes seen as very problematic, and there is the additional fear that such a
motive would be open to exploitation. An obvious example of all these concerns is
mercy killing or killing out of a sense of compassion.
Thus, whilst there is an obvious objection to the capacity theory, there are major
doubts that the alternatives are preferable. If, for the sake of the argument, we accept
that a person might be held responsible and liable to conviction even though (s)he
lacked the capacity to conform to the law, what would be the rationale behind it?
The only apparent possibility is some notion of overriding public good, but that would
suggest that gross injustice could be done to a person who, through no fault of his/her
own, lacked capacity but was nonetheless to be punished severely. Individual moral
culpability would become irrelevant. Such an approach would surely be unacceptable in most, if not all, jurisdictions.26
Furthermore, the capacity theory sits comfortably alongside desert theory which is
a key feature of penal policy throughout the western hemisphere. In the light of what
has been argued in this section of the article, it is worth persevering with the concept
of subjectivism as interpreted here. Aside from the scope of definition, subjectivism
has been attacked on various fronts, one of which is the alleged problem caused by
the often inescapable element of luck. In this respect, it would be unwise to advocate
a purely subjectivist approach since that would ultimately confine the laws censure
to what we try to do.27 Of course we frequently lack total control over the outcomes
of our behaviour, but we still retain a good measure of control. Moreover, there is
evidence that outcomes are seen as important to the public28 and, if only for that reason,
25. N. Lacey, Partial Defences to Homicide: Questions of Power and Principle in Imperfect and Less
Imperfect Worlds , in A. Ashworth and B. Mitchell, eds., Rethinking English Homicide Law (Oxford
2000) pp. 117119.
26. In England, for example, there was considerable criticism of the decision of the Divisional Court in
Elliott v. C (a minor) [1983] that an educational subnormal girl of 14 years should be convicted of
reckless arson when she set fire to a garden shed even though her subnormality prevented her from
being able to recognise the risk caused by dropping lighted matches into white spirit; see S. Field
and M. Lynn, Capacity, Recklessness aund the House of Lords, Criminal Law Review (1993)
p. 127.
27. This is not the place to rehearse the arguments in detail. Interested readers can find a full account of
the jurisprudential arguments surrounding this, issue in the following three essays; J. Hornsby, One
Whats Done Intentionally; R.A. Duff, Acting, Trying, and Criminal Liability; and A. Ashworth,
Taking the Consequences, all in S. Shute, J. Gardner and J. Horder, eds., op. cit.
28. See, for example, B. Mitchell (1998), loc. cit.

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to the judiciary,29 As Professor Clarkson reminded us [i]f no distinction were drawn

between causing harm and not causing harm (in, say, attempt), the message communicated would be that the causing of harm was of no moral significance when clearly
in terms of social and legal responses, it is of significance . The causing of harm
arouses extra bitterness and resentment in victims, relatives, and society. The causers
of harm feel extra guilt and remorse.30
Pursuing a (non-purist) subjectivist approach would lead us at some point to
consider the implications of the principle of correspondence; i.e. the principle that a
person should only be liable for those consequence which (s)he intended or foresaw.
As indicated earlier, to these might legitimately be added cases in which the defendant did not in fact foresee the harm which resulted but had the capacity to have
foreseen it. Quite apart from any objections which some readers may have that these
latter cases are truly consistent with a subjectivist approach, it must be acknowledge
that the correspondence principle has recently been attacked by some English criminal
lawyers.31 In particular, Dr. Horder argued firstly that the principle conflicts with the
principle of personal autonomy. The argument is illustrated through a hypothetical
situation in which D throws is brick at V, aware that it might strike and injure V.
But Dr. Horder claims that because the outcome of Ds act of throwing the brick is ultimately a matter of chance V might suddenly move in a different direction so that
the brick misses him the principle of autonomy is breached whilst the principle of
correspondence is in tact.32 But there are two objections to this argument. First, the
example used is more appropriately treated as an attempt to demonstrate the
limitations of the autonomy principle rather than to expose any weakness in the correspondence principle. Second, it is surely an overreaction to say that the autonomy
principle has been breached: as suggested earlier, lack of complete control over the
outcomes of ones actions does not negate autonomy entirely.
Opponents of the correspondence principle not surprisingly have offered various
hypothetical situations which they claim the potential absurdity or injustice it can
produce. In reply to my criticism of his critique of the principle, Dr. Horder, for
example, invites us to consider a scenario in which D shoots V, saying he honestly
thought V was about to attack and rob him because V was a young black man and
such people do that sort of thing all the time.33 Dr. Horder (rhetorically) asks whether

29. The comments of the former Lord Chief Justice, Lord Taylor in R v. Pettifer (1989) 11 Cr App R
(S) p. 321 at p. 323 illustrate this.
30. C.M.V. Clarkson, Context and Culpability in Involuntary Manslaughter: Principle or Instinct?, in
A. Ashworth and B. Mitchell, eds., op. cit., p. 159.
31. See especially J. Horder, A Critique of the Principle of Correspondence in Criminal Law, Criminal
Law Reviews [1995] pp. 759770; B. Mitchell, In Defence of a Principle of Correspondence, Criminal
Law Reviews [1999] pp. 195205; and J. Horder, Questioning the Correspondence Principle, Criminal
Law Reviews [1999] pp. 206213.
32. J. Horder [1995], loc. cit., p. 760.
33. J. Horder [1999], loc. cit., p. 207. It is somewhat ironic that Dr Horder immediately preceded this
scenario by remarking that most defendants are not the wild eccentrics of examination hypotheticals, but are perfectly normal! It is also interesting to note that at the same time he expresses a
preference for defending what he calls a moderate objectivism by which defendants are judged
by the standards of self-control, courage, prescience and moral sensitivity possessed by ordinary

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D should be judged by his own racist standards. In so doing, he misinterpreted or

misunderstood what I had argued. In this scenario the question whether D has failed
to do what could reasonably have been expected of him34 should be addressed by
looking at the evidence (if any) that V was in any way threatening D. The fact that
V was young black man would obviously not per se constitute sufficient evidence to
justify pre-emptive violence. If there was no other evidence to support Ds claim,
and if that claim was a genuine belief, then it is suggested that D should be treated
as mentally disordered in some way.35 A racist who encountered a young black man
might manifest his racism by provoking or attacking the black man, but a mentally
normal, even extreme racist would not argue that every time a young black man
meets him he would inevitably be robbed.
A further criticism of the correspondence principle made by Dr. Horder arises
from his contention that subjectivists have failed to fully appreciate what he calls
the normative significance of intent.36 Subjectivists, he feels, are inclined to be unduly
sympathetic towards defendants where the harm actually suffered extends beyond
their mens rea. In many of these cases, according to Dr. Horder, the defendant ought
not to be able to claim that the harm suffered was simply bad luck. Rather, where a
defendant has intentionally sought to harm someone (s)he has effectively made his/her
own luck; the intent to cause harm (albeit less than that which actually ensued) provides
a moral culpability which, in some cases, ought to justify holding the defendant liable
for the harm suffered. At the same time, Dr. Horder recognises that this argument is
open to the objection that, as the English Law Commission concluded in relation to
the existing offence of unlawful and dangerous act manslaughter, there may a considerable gap between the defendants mens rea (i.e. his intention or foresight) and
the actual harm suffered by the victim. He therefore suggested that this gap should
be narrowed by requiring a moral proximity between the tow elements. 37 However
much initial appeal this may have, it is itself vulnerable to the obvious criticism that
the concept of proximity is ambiguous; it has a vagueness which strongly suggests
that the courts would construe it inconsistently. (Indeed, the English case law on the
meaning of proximity for the purposes of criminal attempts prior to the Criminal

34.
35.

36.
37.

people . Like many opponents of subjectivism, Dr. Horder assumes that, excluding the young
and the mentally deficient, the variations between most people in their capacity for self-control, courage,
prescience etc. are not significant, so that the concept of how an ordinary person would have
behaved in any given circumstances can be assessed sensibly and easily. But although scientific
research is still in its relatively early stages, the picture which is emerging suggests that personal
characteristics, of which there are many, vary considerably; the concept of an ordinary person
needs to be probably much more elastic than has traditionally been assumed.
B. Mitchell, [1999], loc. cit., p. 197.
In this respect, I appear to differ from Dr. Horder; see J. Horder [1999], loc. cit., p. 207. Further, a
broadly similar response should be given to the scenario offered by Richard Tur in which Adonis,
believing no woman could ever say No to him, had sexual intercourse with a non-consenting
woman, misinterpreting her resistance and protests (see R.H.S. Tur, loc. cit., p. 220). Assuming Adonis
really did believe the woman was consenting and that he was so irresistible to women, the preferable manner of disposing of this scenario would be to treat Adonis as mentally deficient or abnormal.
It should not be regarded as undermining the correspondence principle.
J. Horder [1995], loc. cit., pp. 763764.
J. Horder [1995], loc. cit., pp. 769770.

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Attempts Act 1981 provides a graphic warning of the likelihood of the inconsistency
and uncertainty that would ensue.)
One potential construction which might be placed on the moral proximity concept
is that it would be satisfied if the defendants intention or foresight encompassed a level
of harm which was just one grade below that which the victim actually incurred.38
This would provide some sort of rationale for the rule in English law that an intent
to cause grievous bodily harm commonly known as the gbh rule suffices to render
the defendant liable for causing death. Legal opinion appears to be divided on this rule.
Retentionists argue that death is final and the difference between death and serious
harm may be small, and no-one can be sure whether death or serious harm will in
fact ensue luck may play a part. Abolitionists, on the other hand, counter that not
only does the gbh rule breach the correspondence principle, but that there is no need
for it because of the availability of conviction for manslaughter. Moreover, the rule
may lead to absurd results for example, the gbh intended may not be life-threatening, as where the intent is to break an arm, or the defendant may positively want
to victim to live, so as to suffer physical pain! The modest evidence available
indicates that the English public are instinctively hesitant about to gbh rule; they appear
to want something in addition, such as either an awareness by the defendant of the
risk of killing or possibly a prima facie objective requirement that the risk of killing
be apparent to any ordinary individual in the same circumstances. 39
In his rejection of the Law Commissions proposal to abolish the offence of unlawful
and dangerous act manslaughter, Professor Clarkson has quite recently argued that
the offence should in fact be replaced by something he suggests might be called killing
or causing death by attack.40 It is accepted that departure from the paradigmatic
homicide, i.e. an intentional killing, requires careful justification, and Professor
Clarkson suggests that the context of the killing can provide it. He argues that where
the killing takes place in a context of violence, where the defendant has chosen to
engage in personal violence and risks injury (s)he cannot complain when criminal
liability is imposed in relation to injuries even death resulting from the attack. 41
Clearly, Professor Clarkson relies in part on Dr. Horders argument about the normative significance of the defendants intent to cause harm but he makes no attempt to
deal with the concern, which Dr. Horder at least addressed (if not terribly convinc38. In his criticism of the Law Commissions proposals on non-fatal crimes against the person, Dr Horder
has suggested that English law should differentiate between different kinds of injury (e.g. between say,
maiming and blinding) so as to give the law some moral nominalism; see J. Horder, Rethinking Nonfatal Offences against the Person, 14 Oxford Journal of Legal Studies (1994) p. 335. Ironically, if
adopted this would almost inevitably make it very difficult to determine whether any one form of
such non-fatal injury came within the next grade of harm below death.
39. See B. Mitchell, Further Evidence of the Relationship Between Legal and Public Opinion on the
Law of Homicide, Criminal Law Review [2000], p. 814 at pp. 819, 820. Interestingly, at a conference at Oriel College, Oxford, in January 2000 entitled Rethinking English Homicide Law, there
was considerable evidence of an instinctive dissatisfaction with the gbh rule, though opinions differed
as to what reforms would be most appropriate!
40. C.M.V. Clarkson, loc. cit., pp. 156164.
41. C.M.V. Clarkson, loc. cit., p. 159. Professor Clarkson is here drawing on John Gardners work on
families of offences; see J. Gardner, On the General Part of the Criminal Law, in A. Duff, ed.
Philosophy and the Criminal Law: Principle and Critique (Cambridge 1998) especially pp. 247249.

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ingly), about the gap between what was foreseen and what was caused. Indeed, he cites,
by way of illustration of the kind of circumstances which would justify conviction
for killing by attack the case of Williams42 in which the defendant twice pushed and
once slapped a young woman, causing her to fall backwards, hitting her head on a
wall-mounted heater and damaging her neck. She died from those injuries. Although
we were reminded that the defendant had assaulted his victim, he had set about her,
death was acknowledged as being accidental. The fact that Williams attacked her
rather than simply quarreled with her does little to narrow the gap between his mens
rea and her death; it is asking an awful lot of the normative significance of his intent
to harm her.
Naturally, Professor Clarkson is right to point out that there is a moral difference
between deliberately attacking the woman and merely arguing with her, but the use
of the concept of families of offences in this context does not seem very persuasive.43 Moreover, his suggestion would may well mean that the defendants in DPP v.
Newbury and Jones44 would not be guilty of killing by attack. There two 15-year-old
boys killed a railway guard when the pushed a paving stone from a bridge into the
path of a train on which he was traveling. They were in fact convicted of constructive manslaughter on the basis that they had committed an unlawful and dangerous
act, but this act was causing criminal damage to property not of the same family
of offences as homicide.45 In addition, surely a much more significant consideration
is the question whether the death of any individual was likely to result from their
actions, whether or not those actions prima facie constituted a personal assault.
A subjectivist approach which incorporates the principle of correspondence would
suggest that a person who causes the death of another should be liable to conviction
for criminal homicide where there is either an intention to kill or foresight of the
possibility of killing. To these, as indicated earlier, the author would add cases where
the killer did not advert to the risk of causing death but had the capacity to have
done so and failed to exercise that capacity. The principle of correspondence may seem
almost crude in its simplicity, but its indisputable appeal is its ability to provide
prima facie evidence46 of the defendants choice to bring about a particular harm,
and thereby merit conviction for a crime which reflects that harm. Dr. Horders
criticism based on its alleged inconsistency with the principle of autonomy is both
an overreaction and a failure of appreciate the true nature of autonomy.

42. [1996] 2 Cr App R (S) 72.

43. As some colleagues at the conference at Oxford in January 2000 remarked, relying on the families
argument to justify the gap in cases such as Williams between the mens rea and the outcome calls
for a very extended family!
44. [1977] AC 500.
45. Perhaps mindful that commentators would probably wish to preserve the convictions in Newbury
and Jones for manslaughter, Professor Clarkson tentatively suggested they might instead be guilty of
killing by gross carelessness, though the precise nature of this carelessness would require close
examination.
46. The possibility that the choice may not have been sufficiently voluntary can, of course, be accommodated in a defence such as duress or self-defence.

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3. THE IMPORTANCE OF ATTITUDE, AND ESPECIALLY INDIFFERENCE

Most, if not all jurisdictions have adopted cognitive concepts such as intention, recklessness and negligence as indicators of mens rea and have incorporated them into their
categories of homicide.47 English criminal lawyers and jurists, though, have persistently
highlighted the inadequacies of these concepts in so far as they can ensure sufficient
moral culpability to justify conviction.48 Moreover, as Antony Duff has reminded us,
the law should be concerned with persons attitudes if and when they structure his/her
actions. Attitudes can motivate or accompany a persons choice and action, although
they do not necessarily evidence a persons voluntary will.49 Indifference describes a
persons attitude or feelings about the consequences or circumstances of his/her
behaviour rather than his/her aims, desires or awareness. It is therefore mutually
exclusive from concepts of intention, recklessness and negligence but it is potentially consistent with each of them. A person may intend to kill, or may advertently
or inadvertently risk killing, and simultaneously be indifferent whether death results.
His or her indifference may be reflected in a lack of awareness of the possibility.50
Indifference also comes in varying degrees, in that a distinction can be made between
a person who knows there is a risk of harm but hopes it will not materialize, and
one who has no such hopes. It cannot be said that the former did not care at all, but
(s)he is still indifferent because (s)he did not care enough to have adopted a different
course of action. The hope that the risk would not materialize can be construed as
no more than fairly weak mitigation. The situation becomes more complex, however,
where the probability of the risk materializing varies. As Brady points out, [a] person
who unjustifiably takes a high risk of harm hoping that the harm will not occur is judged
more culpable than one who takes a lesser risk but does not care one way or the
other . In the former, the person who hopes not is guilty of a higher degree of
indifference than the person who simply does not care about a likely risk. 51
It is only right to acknowledge that indifference as to causing death has been rejected
as a fault element on the ground that whilst denoting moral censure it is ultimately
just another form of subjective recklessness.52 The concept of wicked indifference
was advocated by Robert Goff, partly on the basis of its apparently successful adoption
in Scots law,53 but it was rejected by the House of Lords Select Committee in 1989. 54
Nevertheless, not only is there a very stark contrast between lawyers satisfaction
47. Not surprisingly, the precise meanings of these concepts varies between jurisdictions.
48. Past editions of Criminal Law textbooks provide ample evidence of this. A succinct demonstration
of the inadequacies can be found in B. Mitchell, Culpably Indifferent Murder, 25 Anglo-American
Law Review (1996) p. 64 at pp. 7071. The English Law Commission reports have acknowledge
much of the criticisms; see most recently Law Commission, Legislating the Criminal Code: Offences
Against the Person and General Principles Law Com No. 218 (London 1993), Part III.
49. A. Duff, Intention, Agency and Criminal Liability (Oxford 1990) pp. 155162.
50. A. Duff, op. cit., at pp. 162, 163.
51. J.B. Brady, Recklessness, Negligence, Indifference and Awareness, 43 Modern Law Review (1980)
p. 381 at p. 388.
52. G. Williams, The Mens Rea for Murder: Leave it Alone, 105 Law Quarterly Review (1989) p. 387
at p. 391.
53. R. Goff, The Mental Element in the Crime of Murder, 104 Law Quarterly Review (1988) p. 30 at
pp. 5258.

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with wicked indifference north of the river Tweed and the reservations about it south
of the river, but English courts have for some time used the concept of indifference
in specific areas of the substantive criminal law, namely reckless rape and indecent
assault. Judges tended to construe it as a form of subjective recklessness. Thus, in DPP
v. Morgan and others, arguing that the legal definition of rap should accord with its
ordinary meaning in the English language, Lord Cross commented that [r]ape, to
my mind, imports at least indifference to the womans consent , to the question
whether a man, who has intercourse with a woman believing on inadequate grounds
that she is consenting to it, though she is not, commits rape. I think that he would reply.
No. If he was grossly careless then he may deserve to be punished but not for rape. 55
In addition, commenting on the case of Breckenridge, Professor Smith claimed that
a person can hardly be said to be indifferent about a matter which has not crossed
his mind.56 As indicated earlier, however, the better view is that indifference should
not be interpreted in this restricted fashion.
A more accurate construction of indifference by English courts is one which implies
that the defendant couldnt care less about the consequences or circumstances of
his actions. In Kimber, a case of indecent assault on a female patient in a mental
hospital, Lawton L.J. said of the accused, [h]is own evidence showed that his attitude
was one of indifference to her feelings and wishes. This state of mind is aptly described
in the colloquial expression, couldnt care less .57 A similar notion of not caring
was used in Venna, a (non-sexual) case of assault occasioning actual bodily harm, where
the jury were directed that they could convict the defendant if he had lashed out not
caring an iota as to whether he kicked somebody .58
Although indifference is potentially consistent with all traditional cognitive concepts
of mens rea, its significance is perhaps best illustrated in situations where the
defendant is not sure about the outcome of his/her actions. Here a distinction should
be made between what Ruimschotel describes as a mere knowledge deficit as opposed
to a value deficit.59 A person has a mere knowledge deficit if (s)he would have
adjusted his/her behaviour had (s)he known in advance what the outcome would be; 60
whereas there is a value deficit if (s)he would not. The latter person placed no more
value on the outcome of the action than the premeditative or intentional actor. In the
context of homicide, the value-deficit killer would have chosen to act in precisely
the same way that (s)he in fact did even if given advance warning that death would
result, and has therefore committed a crime which is the moral equivalent of the

54. House of Lords, Report of the Select Committee on Murder and Life Imprisonment HL Paper 78-1
(London 1989) especially paras. 7476.
55. [1975] 2 All ER 347 at 352.
56. Criminal Law Review [1984] p. 174.
57. (1983) 77 Cr App Rep 225 at 230.
58. [1975] 3 All ER 788 at 792.
59. D. Ruimschotel, The Psychological Reality of Intentional and Negligent Criminal Acts, in P. Van
Keppen, D.J. Hessing and G. van den Heuvel, eds., Lawyers on Psychology and Psychologists on
Law (1988) pp. 8385, cited by C. Wells, Reforming the Lore of Murder (1990) unpublished paper
presented at the Willem Pompe Institute, University of Utrecht.
60. The defendant who knowingly takes a risk but hopes that it will not materialize is likely to have
acted differently if told in advance that it would in fact do so.

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paradignamic case of murder. The knowledge-deficit killer, on the other hand, at

lest has the more redeeming feature that (s)he would have refrained from killing.

4. INDIFFERENCE, COGNITION AND SUBJECTIVISM

Traditional subjectivism would obviously dictate that a value-deficit killer who either
intended to kill or knowingly risked killing should be liable to conviction for criminal
homicide. Moreover, a value-deficit killer who lacked such intent or awareness should,
regardless of the question of personal capacity, similarly be prima facie liable to
conviction for homicide because the course of action (s)he took was the one (s)he would
have taken even if (s)he had advance information of the outcome, so that the principle of correspondence remains morally in tact. Yet this value-deficit indifference is
not per se sufficient to constitute the fault element in criminal homicide, for there
must always be evidence of moral blame in relation to the taking of a course of
action which resulted in death. For example, take the case of a value-deficit killer
who was blamelessly unaware of the possibility of causing death. Assuming there
was no other unreasonable risk, such as causing lesser harm, (s)he has acted in the
same way as any ordinary reasonable individual would have acted in the same circumstances. The mere fact that this person would not have adjusted his/her behaviour
if given advance warning of the outcome should not be treated as an adequate
substitute for the absence of any moral blame for taking the fatal course of action. 61
A killer who intends to kill clearly merits conviction for murder (or whatever label
is attached to the most heinous category of criminal homicides), without the need to
consider whether (s)he was a value-deficit killer. Those who foresee that they might
kill but are not sure they will do so they are subjectively reckless as to causing
death are also invariably liable for conviction, though the precise category into which
they fall will vary between jurisdictions. Under current English law, such a person
would be guilty of manslaughter, but what if (s)he was also a value-deficit killer?
Such a killer has chosen to take the risk of killing, and in cognitive terms the only
difference between this person and one who intentionally kills is that the former
thinks death might occur whereas the latter thinks that it is inevitable. Each of them
may be mistaken, and the objective probability of killing may be greater in the case
of the subjectively reckless killer. The presence of a value deficit means that the
defendant would not have altered his/her behaviour even with advance knowledge of
the outcome and thus bears the same moral blame as the intentional killer. Indeed,
the latter may hope that (s)he is mistaken about the outcome, yet such a hope would
not affect liability for murder. There is, therefore, a strong argument that a combination of awareness of the possibility of causing death together with a value deficit in
relation to killing should be regarded as meriting a conviction for murder.
Defendants who were unaware of the risk of killing may fall into varying categories.
Some may never have considered the possibility at all; it simply never entered their
heads that they might kill. Others may have thought about it and either decided there
61. This is surely why Duff used the phrase culpable practical indifference (emphasis added); see A.
Duff, op. cit., p. 172.

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was no such risk or they might have thought they had eliminated it by taking specific
measures before they acted. Following the decision of the House of Lords in Caldwell,62
a person who never considers what was an objectively obvious risk is regarded as
reckless, whereas those who considered the matter but wrongly concluded there was
no risk can be no more than negligent. Current English law recognises as one species
of involuntary manslaughter the crime of gross negligence manslaughter. Gross negligence is a notoriously elastic concept which encompasses those who wrongly think
there is no risk as well as those who have never considered the question. What matters
is that firstly a reasonable person in the same circumstances would have recognised
the risk and would not have taken it, and secondly the standard of care displayed by
the defendant fell a long way short of what could reasonably have been expected.
The only apparent limitation on gross negligence is that the defendant must have
owed a legal duty of care towards the victim.63
It was argued earlier that those who had the capacity to recognise the risk of killing
but failed to exercise it should be liable to conviction for manslaughter, but what should
be the effect of the additional presence of a value deficit as to causing death? Before
attempting to answer this, it is important to recognise that capacity should also be
applied to value-deficit indifference. The defendant must be capable, in the sense of
having at least a latent awareness64 of the prevailing moral and political values about
his/her conduct and especially the results of his behaviour. In homicide, this means
(s)he must have been able to appreciate the value society places on human life,
otherwise, as Professor Norrie warns, [w]ithout that, the accused could not be expected
to recognise that his act reflected callousness. 65 Whether in cognitive terms such an
inadvertent killer be classed as reckless or (grossly) negligent, it is difficult to counter
the argument that there is not the same degree of choosing to kill or voluntarily
risking death as in the cases of intentional or subjectively reckless killers. The issue
here is where to draw the boundary between murder (the most heinous homicides)
and the upper limit of manslaughter (or slightly less serious homicides). This cannot
be judged scientifically or objectively; it must be a matter of social and criminal/penal
policy, and the author would treat such cases as comparatively serious manslaughters.

5. EVIDENTIAL ISSUES CONCERNING INDIFFERENCE

Reference has already been made to the fact that Scots law recognises a concept of
wicked indifference and there appears to be little or no evidence of dissatisfaction
62. [1982] AC 341.
63. This is what is commonly treated as the correct interpretation of the House of Lords decision in
Adomako [1995] 1 AC 171, but the speeches in that case are less than entirely clear.
64. I.e. in the sense that societys moral and political values, especially the significance of causing death,
were stored in the brain and could have been called on by the defendant; see, for example, the
comments of L.J. Eveleigh in Murphy [1980] QB 434 at 440 on latent awareness.
65. A. Norrie, Crime, Reason and History (London 1993) p. 76.
66. S. 210.2(1)(b). These are illustrations of what has traditionally been the felony-murder rule cases
in which a defendant has killed another person in the course of committing one of a short list of
(other) serious crimes such as rape, robbery, arson or burglary.

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with it. Dutch law has, as one of its categories of intentional killing, cases where the
defendant is indifferent to the primary result of his/her action. The American Model
Penal Code includes as a species of murder reckless killings in which the defendant
displays extreme indifference to the value of human life.66 Nevertheless, some lawyers
have argued that there are considerable evidential difficulties in substantiating an
allegation of indifference.67 But are these (theoretical) difficulties insurmountable? Does
indifference pose evidential problems which are significantly greater than cognitive
concepts such as intention or recklessness which can only be judged i.e. the jury
makes an informed guess, and the quality of the information may vary considerably!
by process of inference?
Again, we should recall Professor Duffs observation that a persons indifference
can shape and be manifested in their behaviour.68 The jury might, for example, be
directed to consider whether there was any evidence to suggest the defendant did
care about the outcome of his/her action, or that (s)he hoped the risk would not
materialise. Take a case such as Hyam69 in which the defendant set fire to a house
resulting in the deaths of two occupants. Did (s)he make any, even a cursory, attempt
to see if there was anyone in the building before setting fire to it, or did (s)he believe
from previous knowledge of the building that it was likely to be occupied? This
would only constitute circumstantial evidence, but it would be more credible than a
bare unsubstantiated claim of hoping that no-one would be harmed. Premeditation might
have similar circumstantial relevance. Although some jurisdictions do not include
premeditation as an element in criminal homicide because it is thought to be incapable of satisfactory definition, there clearly are cases in all jurisdictions in which
premeditation is recognized and invariably treated as an aggravating factor when passing
sentence.
Then again, the courts assessment of the objective likelihood of death occurring
might shed light on the issue, and in particular, how obvious was the probability that
death would ensue and whether there was any evidence to suggest that the defendant
might (not) have been aware of it.70 A low probability of causing death might constitute
circumstantial evidence that the defendant had no more than a knowledge deficit and
should therefore be given the benefit of the doubt. But suppose a man sets fire to a
derelict building which, as he knows, is very occasionally used by tramps, and one
of them is killed in the blaze. Prima facie, a court may conclude that the likelihood
of any serious harm was very low and that the defendants awareness of this should
limit his liability to manslaughter. Yet what if there was evidence that the defendant
hated tramps and had admitted to the police that he would have acted in precisely
the same way if he had known that the building was occupied? Such callous indif-

67. See, for example, W. Wilson, Murder and the Structure of Homicide, in A. Ashworth and B. Mitchell,
eds., op. cit., especially p. 31.
68. N. 48.
69. [1975] AC 55.
70. Although the point is not quite the same, it is worth recalling the following comment by Lord
Scarman in Hancock and Shankland [1986] 2 WLR 357 at 364 that the greater the probability of a
consequence the more likely it is that the consequence was foreseen and that if that consequence
was foreseen the greater the probability is that that consequence was also intended.

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ference, coupled with the awareness of the (albeit low) risk of killing, surely justifies regarding the case as extremely serious murder rather than manslaughter(?)

6. CONCLUSIONS
It has been argued that, whatever the label attached to it, the law should adopt an
approach to liability which places the legal spotlight firmly on the accused, on what
(s)he intended or foresaw or was capable of foreseeing. This is consistent both with
prevailing penal policies based on individual desert and with behavioural theories based
on personal autonomy. Traditional cognition-based concepts of mens rea are regarded
as important but inadequate per se in ensuring the defendants moral culpability and
responsibility for the outcomes of his/her behaviour. Indifference can be construed
so as to provide moral equivalence to intention and foresight, and a particularly
callous form of indifference value-deficit indifference has been advocated.
The early part of this article was especially concerned with concepts, theories and
principles which underpin large sections of the criminal law. One potential problem
when assessing and rethinking the homicide law is the inevitable emotionality of the
subject, but this merely obviates the need to devise a sound theoretical basis for the
substantive law. Certainly, in some jurisdictions there is evidence that the media
and/or the public too frequently regard conviction for a lesser homicide offence such
as manslaughter as little more than a consolation prize for the prosecution. 71 The gap
between the more serious and the lesser offences such as murder and manslaughter
is perceived to be so great that anything other than a murder conviction implies injustice. Ironically, there is a strong argument that those laws which make it relatively
easy for the court to convict for the lesser offences (such as unlawful and dangerous
act manslaughter) are effectively abetting the misconception that such offences are
not really that serious.72 Only by ensuring adequate moral responsibility and culpability
for killing are we likely to redress this misconception.

71. See, for example, S. Smith, Crime in the News, 24 British Journal of Criminology (1984) p. 289;
L. Barrile, Television and Attitudes about Crime, in R. Surette, ed., Justice and the Media (Springfield,
Illinois 1984); R. Broadhurst and D. Indermaur, Crime Seriousness Ratings: The Relationship of
Information Accuracy and General Attitudes in Western Australia, 15 Australian and New Zealand
Journal of Criminology pp. 219234; Canadian Sentencing Commission, Sentencing Reform: A
Canadian Approach (Ottawa 1987); J.V. Roberts and A.N. Doob, News Media Influences on Public
Views of Sentencing, 14 Law and Human Behaviour, pp. 451468; and J. Knowles, Ohio Citizen
Attitudes Concerning Criminal Justice (Columbus, Ohio 1982).
72. The fair labeling implications i.e. the principle that crimes should reflect the nature and gravity of
their moral culpability are all too obvious here.

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