The Gazette 1983

GAZETTE

JULY/AUGUST

198

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. 23 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". 24 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. 25 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 of 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 121

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 in mens rea because "it is essentially a failure to exercise such capacities". 19 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". 20 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.". 21 Secondly, this constitutional framework would require that the law of criminal responsibility recognise various excuses and justifications. 22 In particular, it would provide an independent perspective through which the essential