1 In the wake of Dworkin 's distinction between rules and principles (especially ‘The Model of Rules I’ in Taking Rights Seriously (1977) pp 15–45) some attempts have been made to apply the analysis in civil law, (and see Bell, Policy Arguments in Judicial Decision-Making (1983) but (maybe saving for Dashwood, ‘Logic and the Lords in Majewski’ (1977) Crim LR 532, 591) the analysis does not seem to have penetrated criminal law theory. Of the ‘general principles’ of criminal law it might be useful to regard excusing conditions as existing to vindicate a general right not to be punished without having chosen to act, the principle of legality a right to fair warning and so on, and thus give the principles their distinguishing characteristics of weight. Since principles, in Dworkin 's account, conflict, it is not possible that ‘general principles’ could form a Code - only ‘general rules’.

2 A phenomenon to which attention was drawn in an excellent paper by Andrew Ashworth ‘Towards a Theory of Criminal Legislation’ (1989) 1 Criminal Law Forum 41.

3 R v Kirk (1985) 1 All ER 453.

4 It is probably also true that attention in undergraduate criminal law courses (and ‘blackletter law’ courses in general) is directed more towards those issues which generate case law than those which do not (but which may be of more significance if the generation of case law is not regarded itself as a sign of importance).

5 Or even where there is legislation proposed (Law Commission Reports etc) or before Parliament.

6 Glanville Williams, ‘Convictions and Fair Labelling’ (1983) Cambridge LJ 85.

7 This may be connected with a nagging idea that the issue of remedy (ie actually getting anything done) is a matter for practitioners not seemly for academic study.

8 The only first instance decisions which seem to be determinative of the state of criminal law are rare ones like Bourne (1939) 1 KB 687, Arthur (1980) and Finch and Jardine (1982).

9 I do not want to be understood as suggesting that Crown Court sentencing is a model of consistency.

10 What follows is a non-exhaustive list.

11 If the net were to be cast more widely one could include the case law on the mental element for offences against the person (Cunningham (1957) 2 QB 396; Mowatt (1968) 1 QB 421) dishonesty in theft, etc.

12 Morgan v DPP (1976) AC 182.

13 Bratty v A-G Northern Ireland (1963) AC 386.

14 A-G Northern Ireland v Gallagher (1963) AC 349.

15 DPP v Smith (1961) AC 290.

16 DPP v Majewski (1977) AC 430.

17 R v Cunningham (1982) AC 566.

18 Hyam v DPP (1975) AC 55.

19 R v Moloney (1985) AC 905.

20 R v Hancock (1986) AC 455.

21 DPP Northern Ireland v Lynch (1975) AC 653.

22 Abbott v R (1977) AC 755.

23 R v Sulliwan (1984) AC 156.

24 R v Howe (1987) AC 417.

25 Warner v MPC (1969) 2 AC 256.

26 Pharmaceutical Society of GB v Sforkwain (1986) 2 All 635.

27 Sweet v Parsley (1970) AC 132.

28 R v Caldwell (1982) AC 341.

29 Andrews v DPP (1937) AC 576.

30 R v Seymour (1983) 2 AC 493.

31 Morgan, fn 12 supra. The decision in the case is not that D may have intercourse with any woman whom he believes to be consenting to it. It was that a man only has attributed to him for the purposes of criminal liability the wrongful act of having intercourse with a woman who does not in fact consent when he has no belief in the existence of her consent.

32 Hale appears to be the first to have made the breakthrough - if that was what it was -from considering the criminal law as a myriad single instances to a composite system with the same rules governing liability for different offences.

33 (ed Burns and Hart) Jeremy Bentham, introduction to the Principles of Morals and Legislation, especially section XIII.

34 J. L. Austin, How to do Things with Words (ed Urmson, 2nd edn, 1975) and especially ‘A Plea for Excuses’ in (ed Urmson) Philosophical Papers (3rd edn, 1979), 175–205.

35 That is, does the result in a particular case accord with a moral intuition embodied in the way in which language is used?.

36 H. L. A. Hart, ‘The Ascription of Responsibility and Rights’ (1948–9) XLIX [sic-IL?] Proceedings of the Aristotelian Society 171, 187, 189.

37 Punishment and Responsibility (1968), preface.

38 Punishment and Responsibility Chapter XI. And see eg, A. T. H. Smith 's review of Fletcher, Rethinking Criminal Law - ‘Rethinking the Defence of Mistake’ (1982) 2 Ox JLS 429.

39 [1958) 1 QB 277.

40 See especially Lord Goddard CJ at 281 and Pearson J at 286.

41 Epileptic fit, coma, hit by a stone or attacked by the famous swarm of bees.

42 If anything, it is the heroic position to which Hart refers at p 191 (that defences arejust so many signs of the absence in each case of a common psychological element), and which informed Glanville Williams, Criminal Law: The General Part (2nd edn, 1961).

43 The same kinds of contrast between looking to see whether a particular verb is properly used and seeking responsibility on some account arise, eg, in the law of omissions and complicity.

44 It is noticeable that civil law courses tend to deal with ‘liability’, criminal law courses with ‘responsibility’. Criminal law is thus individualised.

45 And see Glazebrook, ‘Situational Liability’ in (ed Glazebrook) Reshaping the Criminal Law (1977) 108.

46 Eg, Being found drunk, etc Winzar v CC Kent (1983) Times, 28 March. Suppose the policeman doing the finding is being pursued by a swarm of bees?.

47 And of course the same issues arise in respect of 'strict’ liability.

48 Glanville Williams, ‘The Definition of Crime’ (1955) 8 CLP 107.

49 According to Derrida, supplementarity is always ‘dangerous’ in that the necessity of invoking a supplement throws into relief the gap or incoherence in the existing analysis. See Jacques Derrida, Of Grammatology tr Gayatri Chakravoty Spivak (Baltimore: Johns Hopkins Press, 1976) pp 141–64.

50 Law Corn No 177 (1989) Criminal Law: A Criminal Code for England and Wales Vol 1 pp 50–51 (Draft Code C1 15).

51 Ross-Clunis v Papudoppoulos (1958) 1 WLR 546.

52 Law Com No 143 (1985) Codification of the Criminal Law para 3.6.

53 What I have in mind is the difference between teaching the law relating to slavery in Roman Law to English students and in the law of the antebellum South to Alabamans. It is clearly easier from an emotional standpoint to ignore the morality of the institution, and teach the rules as though the rules of the game, in the former case. But in view of the argument in the text I want to suggest that it is justifiable in neither case. [Some would have slavery taught as being itself a crime: Herman and Julia Schwendinger, ‘Guardians of Order or Defenders of Human Rights’ in Taylor, Walton and Young (eds) Critical Criminology (1975).].

54 This needs not, of course, be that the teacher agrees with the values of the materials presented.

55 R. M. Hare, The Language of Morals (1952): and see Glover, Causing Death and Saving Lives (1977) Ch 2 section 3 for an account of the relationship between general propositions and test cases in moral argument.

56 Miller (1983) AC 161.

57 Stone (1977) QB 354.

58 Perhaps it would be helpful if for once in a while academics had to explain this irrelevance, not to students (who can be silenced by, ‘Because I say so and I 'm setting the exam’), but to one of the inmates of Her Majesty 's Prisons.

59 There is material produced by social psychologists upon the attribution of responsibility, but it does not really amount to any more than a public opinion survey calling for a series of murders to be placed in order of culpability. Eg, Hamilton, ‘Individual Differences in Ascriptions of Responsibility, Guilt and Appropriate Punishment’ in Bermant, Nemeth and Vidmar (eds) Psychology and the Law (1976) 239–263.

60 David Nelken ‘Criminal Law and Criminal Justice: Some Notes on their Irrelation’ in (ed Dennis) Criminal Law and Criminal Justice (1987) p 139.

61 Professors Smith, Griew and Dennis.

62 The SPTL Criminal Law Group, the Criminal Law Sub-committee and the Statute Law Society, have held conferences on the subject. The society for the Reform of criminal Law is holding its second and third conferences on the subject in January 1990.

63 Law Corn No 177 (1989) A Criminal Code for England and Wales.

64 Wells, ‘Restatement or Reform?’ [1986) Crim LR 314.

65 This appears to be what has happened in Code jurisdictions.

66 Hence the difficulties over the liability under the post-war extensions of the doctrine of innocent agency, in particular in saying that Leak (1976) QB 217 ‘had intercourse with his wife without her consent’ (which is what an indictment charging rape as perpetrator must have alleged).

67 Which dates at least to Locke,An Essay Concerning the True Original Extent and End of Civil Government (1963) para 61: ‘We are born free as we are born rational’.

68 Infra section III (C).

69 [1975) QB 834.

70 ‘A network of principles which constitutes a sort of commonsense theory about how to explain human behaviour.’ Horgan and Woodward, ‘Folk Psychology Is Here To Stay’ (1985) XCIV Philosophical Review 197.

71 Cohen, ‘Freedom of Proof in Twining (ed) Facts in Law (ARSP 1984).

72 Nelken, ‘Critical Criminal Law’ (1987) 14 JLS 105 and ‘Criminal Law and Criminal Justice: Some Notes on their Irrelation’ in Dennis (ed) Criminal Law and Criminal Justice (1987) p 139.

73 J. L. Austin, ‘A Plea for Excuses’, supra, fn 36 cited in Hart, The Concept of Law (1961) preface.

74 Even when this is done by a philosopher: contrast the writing of eg, G. E. M. Anscombe on intention or R. A. Duff on various aspects of the mental states employed in criminal law with eg, the debate on intention at (1978) Crim LR 5 and 14.

75 Neither the Working Party on Codification of criminal Law (Law Com No 143, 1985 1.18–8.21) nor the Law Commission, A Criminal Code for England and Wales (Law Corn No 177, 1989 19–8.21) gives a reason for preferring a subjective definition of recklessness (as codification exercises this would be unnecessary since a wider concept - heedlessness in the Working Paper- can be available. Successive (3rd, 1973, 45 and 4th, 1978, 52) editions of Smith and Hogan, Criminal Law imply promulgated the subjective line as an article of faith. Came Caldwell, the only arguments against are a not especially strong one from the authority of Cunningham together with a demonstration of the uncontroversial but largely, irrelevant (because no-one suggested that the person who is subjectively reckless as, eg to damaging property should escape - the only question is whether the person who is ‘objectively’ reckless should escape) proposition that the person who is objectively reckless but does not foresee is morally indistinguishable from s/he who foresees and takes the risk. (The idea that the two cases are morally indistinguishable appears in the speech of Lord Diplock, and is not really defensible.) (5th edn, 1983, 55–6; 6th edn, 1988, 67–8).

76 So far developments in literary theory have not influenced the way in which lawyers read documents. The courts appear still to be at the stage of the ‘intentionalist fallacy’ (the view that documents should be read with a view in general to discovering the intention of the author). This has not been considered appropriate in literary circles since 1960 (at the latest). Increasingly the critical theory literature (Foucault, Derrida, Lacan) is influencing legal academics in the US and the influence is spreading across the Atlantic.

77 Law is parasitic, second-order, applied discipline (like engineering). It is at its best when being influenced by ideas from other disciplines yet hardly has influence beyond its own boundaries.

78 John Rawls, A Theory of Justice (1972).

79 Not just the sex/drugs/rock ‘n’ roll questions of the 60s, but eg, blackmail. Lindgren, ‘Unravelling the Paradoxes of Blackmail’ (1984) 84 Col LR 670; Feinberg, ‘The Paradoxes of Blackmail’, (1988) 1 Ratio Juris 83.

80 See eg, Honderich, ‘Our Omissions and the Violence’ in Violence for Equality (1980) Ch 2; Harris, ‘The Marxist Conception of Violence’ (1973) 3 Philosophy and Public Anairs 192; ‘The Survival Lottery’ (1975) 50 Philosophy 81; Mack, ‘Bad Samaritanism and the Causation of Harm’ (1980) 9 Philosophy and Public Affairs 230.

81 Joel Feinberg, The Moral Limits of the Criminal Law (4 vols, Oxford University Press) is remarkable in its scope, learning and wit in addressing such questions.

84 I suggest that this is the penal philosophy underpinning Smith and Hogan. Over and over again there are phrases repeated like ‘Policy may best be served …’ (pp 191 and 220); ‘a verdict of acquittal seems appropriate’ (ibid); ‘It is submitted that…’; ‘It is open to the courts to move in this direction.’ (p 247).

83 Coggan and Walker Frightened for My Life (Fontana, 1982); Benn & Worpole, Death in the City (1986, Canary Press); INQUEST publications generally.

84 Glover, Causing Death and Saving Lives (1977) Ch 20.

85 John Braithwaite, Corporate Crime in the Pharmaceutical Industry (1984).

86 W. G. Carson, The Other Price of Britah 's Oil (1982).

87 Dowie, ‘Pinto Madness’ in (ed Hills) Corporate Violence (1987), 13–29, which see passim.

88 And see Celia Wells, ‘The Decline and Rise of English Murder: Corporate Crime And Individual Responsibility’ [1988) Crim LR 788.

89 R v HM Coroner, ex p Spootzer d Rohan (1989) 88 CAR 10; Wells, ‘Manslaughter and Corporate Crime’ (1989) 139 NLJ 931.

90 (1930) Am Bar As J 387, quoted by Craig Haney, ‘Psychology and Legal Change’ (1980) 4 Law & Hum Beh 147.

91 Such evidence would generally, but not invariably, proceed from the sorts of behaviourist premises of B. F. Skinner See his Beyond Freedom and Dignity (1971) and About Behauiourism (1974).

94 See, eg, the ‘Further Reading’ section in Trusted, Freewill and Responsibility (1984), 184–187.

93 Hence the impossibility of giving serious attention to the views of Wootton, Crime and the Criminal Law, (2nd edn, 1981).

94 The most notable examples of such considerations are Hart, Punishment and Responsibility (1968) 28–31; Ross, On Guilt, Responsibility and Punishment (1975) esp chapters 5 & 6; Kenny, Freewill and Responsibility(1978) ch 2; Jareborg, Essays in Criminal Law (1987) ch IV.

95 The Unresponsive Bystander: Why Doesn 't He [sic] Help? (NY, Appleton-Century-Crofts 1970). See generally Sheleff, The Bystander (1978).

96 Erlander, ‘Post-Traumatic Stress Disorder: Vietnam Veterans and the Law’ (1983) 1 Behavioural Science and the Law 25; Packer, ‘Post-Traumatic Stress Disorder and the Insanity Defence; A Critical Analysis’ (1983) 11J Psych and Law 125.

97 Brett, ‘The Physiology of Provocation’ [1970) Crim Lk 634; Ashworth, ‘The Doctrine of Provocation’ (1976) 35 Camb LJ 292; Dressler,‘Rethinking Heat of Passion’ (1982) 73J CrimL & Crim 421.

98 ‘Brainwashing as a Criminal Law Defence’ [1984) Crim LR 726.

99 Rosen, ‘The Excuse of Self-Defence: Correcting a Historical Accident on Behalf of Women who Kill’ (1986) 36 Am U LR 11.

100 Taylor and Dalton, ‘Premenstrual Syndrome: A New Criminal Defence?’ (1983) 19 Cal WLR 269.

101 Fox, ‘The XYY Offender: A Modern Myth?’ (1971) 62 J CLC and PS 59.

102 Stanley Milgram, Obedience to Orders (1974).

103 Delgado, ‘Rotten Social Background: Should the Criminal Law Recognise a Defence of Severe Environmental Deprivation?’ (1985) 3 Law and Inequality 9: Note, ‘The Cultural Defence in the Criminal Law’ (1986) 99 Harv LR 1293; Vuoso, ‘Background, Responsibility and Excuse’ (1987) 96 Yale LJ 1661.

104 Americans, headed by Fletcher, Dressler and Robinson, influenced by Germans, headed by Eser. See Fletcher, Rethinking Criminal Law (1978), preface ‘Criminal law is a species of moral or political philosophy’.

105 [1989) 1 All ER 321, CA, (1989) 2 All ER 1, HL.

106 Jerome Hall, Theft, Law and Society (1st edn, 1935, 2nd edn, 1952).

107 Chapter One. The inaccuracy is that Hall understands the case as being a larceny trial of the Carrier (p 4). In fact the case (YB 13 Edw IV f9 p 15) was an action for detinue brought by the merchant to recover the property. Prima facie, in the event that the court held there to have been a felonious asportation, the goods were subject to the law of waif, and forfeit to the crown. What seems to have been decided is (i) that there is a larceny in the case of ‘breaking bales’; but (ii) that the fact that the merchant was from abroad and operating with a safe conduct pass from the King rendered him immune to the law of waif. It follows that the same decision the case (the merchant getting his goods back) could have been achieved without the doctrinal leap which was made in the law of larceny. See Fletcher, Rethinking Criminal Law (1978) 68–9.

108 Chambliss and Seidman, Law, Order and Power (2nd edn, 1982), 175 et seq.

109 R v Jones (1704) Salk 379; 91 ER 475.

110 The enactment of a general false pretences statute in 30 Geo II (1957) does not itself seem to have made very much difference: see R v Wheatly (1761) 2 Burr 1125, 97 ER 746.

111 R v Young 3 Durn & East 98; 100 ER 475.

112 See E. P. Thompson, Whigs and Hunters (1975); Styles, ‘Our Traitorous Money Makers: the Yorkshire Coiners and the Law’, in Brewer and Styles (eds) An Ungovernable People (1980) 60–83; Simpson, ‘The “Blackmail” myth and the prosecution of rape and its attempt in Eighteenth Century London: the Creation of a Legal Tradition.’ (1986) 77 J Crim L & Crimin 101.

113 Eg, Bailey and Blackburn, ‘Punishment of Incest Act 1908: A Case Study in Law Creation’ [1979) Crim LR 708 and Gunningham, ‘Pollution, Social Interest and the Law’, in Theories of Law Creation 13–28. It would be interesting to see a ‘law creation’ study on the Company Securities (Insider Dealing) Act.

114 Goode, ‘Law Reform Commission of Canada - Political Ideology of Criminal Process Reform’ (1976) 54 Can Bar Rev 653; Rustigan, ‘Reinterpretation of criminal Law Reform in Nineteenth Century England’ (1980) 8 J Crim Justice 205–219; Wells, ‘Restatement or Reform? (1986) Crim LR 314.

115 Ie, the cases cited at fn 13–31 supra.

116 I am indebted for this argument to Jos Silvis, of the Willem Pompe Institute, University of Utretcht.

117 A freudian reading would find the same sorts of anxiety (albiet about different sorts of crime) in the attitude of writers to corporate crime (where anger at the harm is displaced into worrying about aggregative theories of corporate mens rea) as in the courts where anger at various violent crimes is displaced into limitations upon mens rea or other defences.

118 Which are greatly overrated: the skills, which academics, generally upon the basis of little or no evidence, believe to be those which would be required in argument before the House of Lords or the Court of Appeal, are inculcated into students the vast preponderance of whom we know will end up as solicitors. Why? Presumably (i) because a Law degree is regarded as being in part professional training, and (ii) because the skills of the solicitor are regarded as trivial and bureaucratic whilst the skills of the barrister are seen as important and intellectual.

119 A point of law of general public importance so as to satisfy the certification procedure could not really arise in a sentencing appeal.

120 For example, R u Billam (1986) 1 All ER 985.

121 [1982) AC at 579H-580C; (1982) 2 All ER 869 g-i.

122 Also note that the attitude in Cunningham (wider definition of murder militates against violent crime) is at odds with the line taken in Moloney and Hancock, both of which narrowed the definition.

123 I have in mind, of course, Beard, Majewski and Caldwell.

124 This raises a further problem with the decision of cases by the Court of Appeal and the House of Lords: the question with which they deal in criminal law appeals are always hypothetical. The assumptions which have to be made lend to the reports a heightened sense of unreality. In Majewski 's case it was made perfectly clear ([1977) AC 4.43 at 498C by Lord Russell at 480D by Lord Diplock) that a conviction could have been secured on the facts without recourse to the rules on basic and specific intent promulgated by their Lordships.

125 [1977) AC at 469G.

126 Particular anxiety is evident in Majewski about drugs because of the facts of Lipman (1970) I QB 152, and other anecdotal evidence their Lordships will have heard about the ‘drug culture’.

127 Before 1977 there are the following: Metropolitan Police Act 1839; London Hackney Carriages Act 1843; Town Police Clauses Act 1847; Licensing Act 1872; Merchant Shipping Act 1894; Inebriates Act 1898; Criminal Justice Administration Act 1914; Road Traffic Act 1930; Children and Young Persons Act 1933; Justice of the Peace Act 1949; Road Traffic Act 1956; Penalties for Drunkenness Act 1962; Licensing Act 1964; Dangerous Drugs Act 1965; Criminal Justice Act 1967; Late Night Refreshment Houses Act 1969; Merchant Shipping Act 1970; Misuse of Drugs Act 1972; Road Traffic Act 1972; Criminal Justice Act 1972: Children Act 1975. A fuller list would include any statute directed against public disorder or violence.

128 The case where D is so intoxicated as not to be able to foresee, or not to know what she does. The case which generates almost all the violence is where D knows what s/he does but is uninhibited because of the effect of alcohol on the brain. Ask any of the lads.

129 For an attempt at such a reading of the cases in duress and murder see Peter Alldridge and Catherine Belsey, ‘Murder under Duress: Terrorism and the Criminal Law’ [1989) II International Journal for the Semiotics of Law 223.

130 R v Conlon, Hill, Richardson B Armstrong (1989) Independent, 19 October.