The Gazette 1983

GAZETTE

JULY/AUGUST

198

which the fixed " t a r i ff would be unfair, and thus work a gross inequality. Accordingly, since it seems that the true constitutional vision requires a recognition of factors other than the harm produced by a particular offence, it is submitted that a mandatory sentencing scheme is constitutionally suspect since it precludes individualised sentencing. There is a constitutional need for a judicial response to variations in blameworthiness with regard to specific offences. The subjective emphasis questioned The analysis carried out above clears the way for a more acceptable vision of the role of the principle of legality, the conditions of criminal responsibility and the principle of proportionality in the criminal law. That vision is extracted from, and grounded in, the ultimate norm, the Irish Constitution. It may be mentioned at this point that a recent work of Professor George Fletcher questions such a subjective approach. 32 Fletcher investigates the archaeology of the criminal law, his gaze searching out the categories of thought governing the structure of doctrine about crime in "Western" culture and beyond. Building on historical and comparative sources he suggests two "patterns of criminality reflected in doctrinal statements about the law of theft. Firstly, the "pattern of manifest criminality" evinces as its crucial feature "that the commission of the crime can be objectively discernable at the time it occurs". 33 The assumption is that an impartial observer could identify the conduct as criminal even if he did not know precisely what the offender's intention was. Secondly, in contrast, the "pattern of subjective criminality" starts from the assumption "that the core of criminal conduct is the intention to violate a legally protected interest". 34 Fletcher traces the influence of these contrasting "patterns" upon matters of doctrine in areas of offences against property, attempts, crimes of possession, conspiracy, and several other offences. He rejects, rather peremptorily, the critical role of moral philosophy in the criminal law as a method of examining the soundness of popular conceptions about criminal responsibility. His patterns of criminality simply present themselves as distillations of historical community experience; and the theorist simply discovers the principles of liability implict in the system of criminal law. His view is also normative however, in that it is a theory about the proper conditions of just punishment; "for each [pattern] states a plausible and coherent theory for pro- hibiting and punishing conduct as criminal". 33 In the fashion of Savigny the theories are extracted from, yet justified by, the accretion of legislation and judicial

judgments. The patterns of subjective criminality would represent, in the main, the theme of criminal responsibility outlined in this article and prevailing in the jurisprudence in view of critical moral philosophy. Fletcher, however, sees dangers lurking in the pattern of subjective criminality. The gravamen of Fletcher's complaint against the subjective focus is that it hinges on an overriding desire to prevent future harm. As regards "subjective criminality" Fletcher states that the requirement of intent "refers to an event in the subject's consciousness that provides a basis for predicting that the actor will violate a legally protected interest". 36 He reiterates that the processes of the criminal law are different and ought to be kept distinct from administrative processes, such as civil commitment of the dangerously insane. The law operates "by means of pre- announced standards of behaviour that are interpreted and applied in particular cases". 37 It would be wrong to consider "whether in a particular case a person ought to be held criminally liable according to whether he is dangerous". 38 Referring to the law of attempts, he makes the point that the move to subjectify the criminal law rejects the "principles of legalism". The problem is, he thinks, that subjectivists are marked by a failure to differentiate between the systemic goals of the criminal law (i.e., to isolate and imprison dangerous persons) and the standards for judgment in individual cases. That failure he concludes betokens a collapse of the distinction between criminal punishment and civil commitment. It is suggested that Fletcher's criticism is misplaced. Firstly, his criticism contradicts the premise of his analysis that the current data of legal experience provide a paradigm of thought in regard to the criminal law. Currently the subjective focus prevails, so this would appropriately be recognised as the paradigm. Yet Fletcher rejects it. Secondly, it is true that a distorted version of "subjective criminality" involved a technique of crimi- nalising substantively innocent conduct. For example, under the draconian Vagrancy code it was routine to punish an individual if he was a "suspected person" (i.e., having previous convictions) found "loitering" and who entertained a legislatively proscribed intent (i.e., to rob and steal). It was not necessary for the prosecution to prove the existence of actual intent.In Fletcher's terms, the character and the location demonstrated irrebuttably the accused's intent. Guilt hinged on an unmanifested intent, and was "proved" by an inference from the condition of the accused. Judgment was really made by the police who arrived at a probalistic conclusion that the suspected person had the prohibited intent at the relevant time. But it is evident from King that this approach is indefensible

Wilkes-Cerdac

Limited

We are Irelands Leading Business Forms Manufacturers. If you have a requirement for Word Processing Stationery or Computer Stationery Please contact us at:- Or at:- Continuous Business Forms Ltd. Millfield, M a l l ow Road, Cork Tel.: 0 21 5 0 9 4 88 110, Dublin Industrial Estate, Finglas Road, Dublin 11. r r I!' | >ho ii" 3036.H T i • 1 • x 3 118'.)

123