PHILOSOPHY

Criminal responsibilitySimon Wilson

AbstractDespite our intuitions, there is no generally agreed definition of criminal

responsibility. Here, the relevant English legal background, the mental

condition defences, and the main philosophical theories of criminal

responsibility are reviewed. The latter are the choice and capacity theo-

ries, character theory, agency theory, social theory, and the definitional

theory. The psychiatric defences of insanity and diminished responsibility

are considered in respect of each of these theories. Although criminal

responsibility does not have any explicit role in English criminal law, it

does pervade the system, and the problem with the lack of any generally

agreed approach is perhaps most starkly exposed when the mental condi-

tion defences are contested in court.

Keywords criminal responsibility; diminished responsibility; insanity;

law; philosophy

What is criminal responsibility?

We assume that people are responsible for (at least some of) their

actions. When these actions constitute criminal acts, we may

wish to know who was criminally responsible. Although this is

a daily matter of routine for the police and courts, there is,

perhaps surprisingly, no generally agreed underlying theory to

support the practice.1 For realists, criminal responsibility is a real

thing or property in the world that can be found or measured.2

For anti-realists, there is no such thing as criminal responsibility:

it is derived from social or moral decisions about whom we

choose to punish.3,4 We maintain a strong intuition that there is

a difference between a murder committed intentionally in the

course of a robbery to make it easier to escape, and a profoundly

depressed and psychotic mother killing her newborn child

because of her delusional belief that it is demonically possessed.

This difference appears on the face of it to have something to do

with criminal responsibility, and with mental disorders some-

times affecting that, and there being more of it in the first case

than the second. But how do we distinguish between these cases?

What are we doing when we make such distinctions? And how

do we excuse crimes?

The criminal law in England and Wales, and the definitional

theory

There are ordinary offences and offences of strict liability. The

latter have almost no mental element to them e if the prosecu-

tion can prove that one carried out the requisite action then one

is guilty, regardless of criminal responsibility (e.g. parking

Simon Wilson MA MRCPsych is a Consultant Forensic Psychiatrist at

Oxleas NHS Foundation Trust, and an Honorary Senior Lecturer in the

Department of Forensic Mental Health Science, Institute of Psychiatry,

UK. Conflicts of interest: none declared.

PSYCHIATRY 8:12 473

violations). Ordinary offences require a guilty mind (mens rea) as

well as a guilty act (actus reus). The precise mental element to

a crime is defined for each offence. However, in broad terms,

there is a hierarchy of criminal responsibility: (1) acts done

intentionally, (2) knowingly, (3) recklessly, and (4) negligently.5

Criminal responsibility then has to do with the mental element,

the mens rea, of crimes. Some have gone so far as to say that

criminal responsibility is simply the presence of both the actus

reus and the mens rea.6 Other pragmatists, the definitional

theorists, suggest that criminal responsibility is simply the state

of affairs that exists when the definitional elements of the crime

have been proven and there is no defence available.7,8 Criminal

defences9 are broadly divided into justifications (e.g. self-

defence, medical authority, parental authority, necessity) and

excuses (e.g. intoxication, insanity, duress, mistake). The mental

condition defences10 (see Box 1) are a subgroup.

In practice, assuming the definitional elements of the crime

are proven, it is the presence of one of the defences listed in Box 1

(particularly insanity and diminished responsibility) that brings

psychiatry to the task of considering criminal responsibility.

Briefly, one is not guilty by reason of insanity if, at the material

time, one was suffering from a defect of reason due to a disease

of the mind. The defect of reason, specifically, is that one did not

know the nature and quality of one’s acts, or did not know they

were wrong. For diminished responsibility (reducing the offence

from murder to manslaughter), one must have been suffering

from an abnormality of mind at the material time that substan-

tially impaired one’s mental responsibility.

In England & Wales, the issue has been of relatively limited

practical importance since the Mental Health Act of 1959,11

which introduced the Hospital Order, a psychiatric disposal for

criminal defendants based on their treatment needs at the point

of sentencing, regardless of their criminal responsibility (except

for murder cases). Prior to this, and still in other jurisdictions, it

was the absence of criminal responsibility (due to an insanity

verdict) that allowed mentally disordered offenders access to

hospital treatment.

What then of the theories of criminal responsibility and the

place of mental condition defences?

Other theories of criminal responsibility

Choice theory and capacity theory

Kant12 wrote that one needed the capacity and a fair opportunity to

conform one’s conduct to the law in order to be criminally

responsible e a combination of capacity theory and choice theory.

Similarly, Aristotle13 thought that actions had to be voluntary in

order to be either praise- or blame-worthy. Involuntary actions

arose from either ignorance (i.e. not knowing, perhaps through

impaired capacity) or compulsion (i.e. not having a choice).

In England and Wales, the age of criminal responsibility is 10.

Children younger than 10 are, by definition, incapable of commit-

ting crime (doli incapax). Between the ages of 10 and 14, if one lacks

the capacity to tell the difference between right and wrong, then one

cannot be held criminally responsible. The insanity defence also

appears to be based on a capacity theory e one’s capacity to

understand or to know about unlawfulness was impaired.

Frankfurt14 proposed a choice theory of responsibility for

one’s actions more generally, based on a notion of second-order

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The mental condition defences

General mental condition defences:

C Lack of mens rea

C Intoxication

C Fitness to plead (insanity before the trial)

C Insanity (insanity at trial)

C Automatism

Specific mental condition defences (partial defences to murder):

C Infanticide

C Diminished responsibility

Box 1

PHILOSOPHY

volitions. One could only truly be responsible if one was able to

act on one’s desires, and affirm or deny those desires. In other

words, true autonomy (and hence responsibility) only applied to

those who could have wants about their wants (second-order

volitions). Critics have objected that this raises the possibility of

an infinite regress e having wants about wants about wants.

Others have criticized Frankfurt’s account on the basis that we

may still hold people fully criminally responsible for actions even

though they were ego-dystonic; in other words, if a person does x

because they desired to x, even though they desire not to desire

to x, we view them as criminally responsible, whereas Frank-

furt’s account would suggest this person was not truly acting

autonomously.2 The partial defence of diminished responsibility

is sometimes interpreted in a choice theory manner e the

psychiatric disorder impaired judgement and ability to make

proper choices.

Character theory

Hume15 suggested that we, in general, excuse those of good

character; for character theorists, one is only criminally respon-

sible for actions related to one’s character. In the 18th century,

legal authorities viewed mens rea as having two components.7

There was a specific mens rea, broadly comparable to the

modern notion (intention, knowledge, recklessness, or negli-

gence). But there was also the notion of a general mens rea: that

the defendant needed to be of bad character (with a ‘‘vicious

will’’16) in order to be criminally responsible. Although this is no

longer generally the view taken by the criminal courts, character

theory does continue to exert some influence e psychiatric

explanations (and the possibility therefore of reduced or absent

criminal responsibility) are more often sought by the courts

when a crime seems inexplicable or out-of-character.17,18

Social theory

There is no mental faculty of responsibility, instead a social

enterprise of determining who to punish and who to excuse

occurs: ‘‘for criminal responsibility there must be ‘moral culpa-

bility’’’.3 Or being ‘‘answerable’’19 for one’s behaviour. Or

enabling one to be an appropriate target for ‘‘reactive attitudes’’4

(such as indignation or resentment). This approach has the

advantage of remaining neutral about free will. The criminal law

largely proceeds as though we are all rational, moral agents with

free will, able to choose how to behave. The sciences, including

PSYCHIATRY 8:12 474

psychiatry, tend to treat the universe (including humans) as

being deterministic; i.e. subject to general laws, where events

(including behaviours) are caused. Psychiatric evidence is

sometimes treated as excusing because it suggests a piece of

criminal behaviour was caused by mental disorder (a determin-

istic account). Although, of course, if one is a determinist, all

criminal behaviour is caused and not freely chosen, and this is

not taken to be excusing. This has been called the ‘‘fundamental

psycholegal error’’8 and is to be closely guarded against. A social

theory of criminal responsibility avoids this difficulty as it is

irrelevant how the criminal behaviour arose e the assignment of

criminal responsibility is a social enterprise to do with blaming

and punishing.

Agency theory

Agency theorists argue that it is one’s ability to act that

determines whether one is to be held criminally responsible. If

things could have been different (nomological indeterminacy)

and one had control over one’s behaviour (agentic power) then

one is criminally responsible.20 Or alternatively, one is only to

be held responsible for one’s actions done qua agent.2

Diminished responsibility is sometimes interpreted in this

manner e the psychiatric disorder impairing one’s ability to

control one’s actions, or making one subject to an irresistible

impulse.21

Conclusions

Although we have strong intuitions about the principle of crim-

inal responsibility and its utility in determining who ought to be

held accountable and punished for criminal offences, there is no

agreed definition, and it is of little practical utility directly in the

day-to-day administration of justice or treatment of mentally

disordered offenders. However, our intuitions are not misplaced

and, although not explicit, it is of importance when the courts

deal with those brought before them, and is perhaps seen most

clearly when the mental condition defences are at issue.

However, it is here that the lack of a satisfactory theory or

approach to the issue, combined with the difficulties of

communication between law and psychiatry22 are also most

evident. A

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