The Gazette 1983

GAZETTE

JULY/AUGUST

198

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", 14 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. 18 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 . . .". 18 119

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 16 is 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 O 'Callaghan . 2 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. 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. 17 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 The conditions of criminal responsibility: actus reus and mens rea