Variation based on Culpability

The above example certainly suggests that we should vary attacks based on culpability, in the pursuit of appropriately labelling our offences. There are two

conventional ways in which this axis can be varied: either in the binary sense that reckless conduct is an assault or it is not; or one includes reckless conduct within assault’ ambit and then uses culpability as a layering function to increase the severity of all forms of assault where intention is present.321

However, the focus on intentionality in our understanding of culpability has resulted in an understanding of ‘intention’ in criminal justice systems that can be said to abuse the natural meaning of the word. Hadden notes that the current conceptions of intentionality in the legal sense are absurd when considered in the context of the word’s natural, much stricter, meaning: the current legal requirements amount to little more than the negation of certain acquitting defences, along with some minimal notion of having foresight of the consequences.322 _{Indeed, and as aforementioned, the South African offence}

of assault can only be committed intentionally, but their conception of ‘intention’ as the necessary mens rea in assault is not dissimilar to how many other legal systems conceive of mens rea broadly: as intention or foresight. The South African understanding of intention utilises the concept of dolus eventualis to hold that persons, in circumstances where no clear intention is present, should, as a matter of fact, have realised that the natural and probable consequences of their actions would occur;323 _{i.e. a textbook definition of}

recklessness.

The result is that intentionality operates less as a sliding axis, and more like a binary switch, where conduct which can be said to reach the minimum level of foresight required ‘flicks the switch’ to engage criminal liability. This, according to Hadden, is

320 _{J Horder, “Rethinking Non-fatal Offences against the Person” (1994) 14 OJLS 335 at 342.}

321 _{This is done to a limited extent in the MPC where, for example, negligently causing bodily injury to} another with a deadly weapon will constitute simple assault, whereas doing the same “purposely or knowingly” will constitute aggravated assault: MPC §211.1(1)(b) and §211.1(2)(b) respectively. 322 _{T Hadden, “Offences of Violence: The Law and the Facts” [1968] Crim LR 521 at 532-533.} 323 _{Burchell, at p.350-351.}

regrettable because intention is not an instantaneous state of mind, but rather operates through time, and so the current conception allows virtually no distinction to be drawn between cases of premeditation and impulse.324 _{As a result, Hadden believes that}

intentionality should take account of premeditation – including this concept in our understanding of culpability would allow this flick-switch to be replaced by degrees of liability, distinguishing those actions which were committed in the heat of the moment from those which were deliberated and calculated.325

Hadden’s approach would therefore move the criminal law from an action-centred theory of criminal liability to one based primarily on culpability. Instead of being asked whether or not the accused intended to kill or to inflict an injury, the jury would be required to assess the extent to which their action was planned, impulsive or unintended, and equally whether they had been culpably reckless with respect to a specific result.326 _To

the criticism that the difference between planning and impulse is simply a question of degree (i.e. it would be hard to identify fixed, separate culpability categories), Hadden responds that the distinctions between intention, recklessness and negligence are no different.

Hadden’s premeditation axis theory appears to base its strength on proposition that the current approach to culpability is ineffective at having regard to the full spectrum of intentionality that can be present in a sequence of events which attracts criminal liability. A man can foresee that his argument with another will turn into a physical fight, then be fully aware that he is punching someone but completely oblivious to the fact that they will thereafter fall and strike their head on the concrete, causing death. There certainly appears to be parallels with what Hadden perceives to be an issue with intentionality generally, versus the operation of constructive liability, particularly in cases of violence. This topic has featured heavily in English legal discourse on offences against the person. There is already a great discussion about how an actor should be treated for those results he did not intend, when he did intend a lesser injury. Currently s47 1861 Act offences operate in this way; the accused must have intended to assault the victim, but there is no mental

requirement for the actual bodily harm: as soon as such harm occurs, the assault moves from the common law and enters the remit of s47. Likewise, the injury that must be foreseen in s20 offences can be relatively minor. Some believe this approach is

324 _{Hadden, op cit. at 523-527.} 325 _{Hadden, op cit. at 534.} 326 _Ibid.

unprincipled,327 _{whereas others argue that persons who threaten or use violence cross a}

moral threshold which makes them responsible for any consequences that they then bring about.328

Constructive liability of course says nothing about the offender’s state of mind before or after the conduct giving rise to liability, whereas premeditation would require consideration of the whole event to determine the overall culpability. If we take the constructive liability argument at first instance, and state that every conduct and result requirement should be met by an equal culpability requirement (which would presumably be the stance Hadden takes, based on his premeditation theory), then we are left to consider what determination of culpability before and after the conduct adds to the criminal process. How relevant is it that the offender specifically sought the victim out to confront them in the first place; or that they then left the victim to die after committing the attack?

On some levels these considerations are already taken into account when

determining whether or not the accused had the relevant mens rea for the crime, so how precisely would Hadden’s method result in a tangible change in how we approach

culpability in the legal process? Hadden advocates an approach that focuses on the whole situation, rather than binary notions of intentionality and harm, but in his discussions of situational considerations being as important as harm considerations, he admits that it would be impossible to provide for every possible scenario and degree of legitimacy in the law; it is unclear how this would be any different for his expanded degrees of culpability under premeditation. Further, in the context of premeditation being a question of degree, it is no real answer to respond that the current system is no better – particularly when he thinks there is a problem with the current system precisely because intention versus recklessness is often treated as a matter of degree. Finally, the introduction of in-depth analyses of a person’s state of mind before and after the crime cannot be seen as anything other than an assessment of their underlying motives – it is not the role of the law to determine whether an actor’s reason for doing something is good or bad as this is purely subjective – their role must be confined to determining when they have objectively carried out prohibited conduct.

327 _{Law Commission, Offences against the Person and General Principles (1993), Law Com No 218, at} para.12.26-12.27; J Horder, “A Critique of the Correspondence Principle” [1995] Crim LR 759; Ashworth & Horder, Principles, p.76. See also s22(2) of the Criminal Code Act 2002 in the Australian Capital Territory which precludes such constructive liability by requiring recklessness in the absence of a fault element for any physical element that consists of a circumstance or result.

The above analysis therefore suggests that the most effective way to vary the culpability axis in the assault structure is either by providing a distinction between intentional and reckless conduct as separate offences, or alternatively by making intentional conduct an aggravating factor of a base crime of reckless injury. It is in this respect that Scotland seems to fare relatively well; the clear division of assault from reckless injury provides a suitable moral distinction between the two types of conduct, and one which is readily understood by the layperson. It additionally avoids the mental

gymnastics required to understand the concept of intentionality in South African law by providing clear separation of intention and foresight. The alternative option invites less of a distinction to be made between conduct which is intended versus committed recklessly, and this is an undesirable direction. The average person arguably does not think of reckless behaviour as being sufficient to constitute an assault.