Criminal responsibility and human capacity: why impaired mental functioning affects moral culpability

The Verdins principles rest on the notion that an impairment of mental functioning may so distort a person’s decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is – to that extent – to be regarded as involuntary. Where that is established, the sentencing court may view the offender’s moral culpability and the need for specific (and general) deterrence as reduced.¹

The notion of criminal responsibility is the foundation of our criminal justice system. The whole object of criminal investigation, prosecution and trial is, of course, to determine whether an accused person should be fixed with criminal responsibility – and punished – for his/her actions.

Surprisingly, perhaps, this foundational concept is almost never examined at a conceptual level by those who work in the system: judges, practitioners and expert witnesses. Legal philosophers, by contrast, have devoted sustained effort over decades to elucidating the conceptual basis of criminal responsibility.

My contention is that those of us who are involved in criminal justice will be better equipped for our respective tasks if we better understand the philosophical – or, more accurately, the moral – foundations of the attribution of criminal responsibility. Understanding the moral dimension is particularly important for the work of sentencing, in which the assessment of moral culpability plays a central part.

For this purpose, I take ‘criminal responsibility’ to mean criminal liability, that is, legal responsibility for the commission of the relevant offence. When a person pleads guilty or is convicted, he or she is found to be criminally responsible for the conduct in question. By ‘moral culpability’, I mean the degree of moral blameworthiness properly attaching to the offending conduct.

Typically, of course, it is not enough to prove that the accused person did the physical act that constituted the criminal offence. It will also be necessary to prove that the act was accompanied by the requisite state of mind, whether intention, recklessness or negligence.

I am not here concerned with those mental elements, however, but with the characteristics of an individual which are seen to justify holding that person criminally responsible and viewing the offending conduct as morally blameworthy.

Perspectives from legal philosophy

In her illuminating 2016 book, ‘In Search of Criminal Responsibility’,² Professor Nicola Lacey explores the idea that criminal responsibility ‘is founded in capacity’. At the heart of this vision of criminal responsibility, she says, is:

the notion of an agent endowed with powers of understanding and self-control.

‘Capacity responsibility’ assumes that we are responsible for the specific acts which we choose to do. In this sense, criminal law:

is addressed to human beings as choosing subjects capable of conforming their actions to the criminal law.

In Professor Lacey’s view, human agency is the key. An attribution of responsibility for specific actions:

lies in human capacities of cognition — knowledge of circumstances, assessment of consequences — and volition — powers of self-control.

And further:

the basic moral intuition is that it is only legitimate to hold people criminally responsible for things which they had the capacity to avoid doing.

In short, the attribution of criminal responsibility involves the taking of a moral position. Having determined to prohibit conduct of certain kinds on pain of penalty, we have made the moral judgment that only persons of sufficient capacity should be held criminally responsible for contravening those prohibitions.

The work of the criminal courts presupposes that human action is the rational product of autonomous choices about how to act. The status of that presupposition is itself deserving of scrutiny. Professor Ngaire Naffine of the University of Adelaide has argued that the notion of the rational, responsible human agent ‘is an open legal fiction. It is a legal device, a piece of artifice, which is the necessary condition of a system which employs such terms as blaming, accountability, responsibility and punishment’.³

This presupposition of rational action has an important corollary. Mental incapacity is a ground of exemption from criminal responsibility even where the person admits to having engaged – or it is proved that they engaged – in the prohibited conduct. That is the field in which the mental impairment defence operates.

Section 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) provides as follows:

1. The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

   1. he or she did not know the nature and quality of the conduct; or

   2. he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

That class of persons must be distinguished from the much larger class with which the criminal courts deal every day. I refer to those who are held criminally responsible, that is, are convicted of or plead guilty to the offence, but whose moral culpability is said to be reduced because of an impairment of mental functioning.

This distinction was drawn in Green v The Queen,⁴ as follows:

In the present case, the judge accepted the expert’s opinion that [the offender] was probably not behaving ‘calmly or rationally’ when he committed the armed robberies. At the same time, the expert had made clear in both reports that [he] was aware of the nature and gravity of what he was doing, and that it was wrong. It is that awareness, of course, which is the foundation of the attribution of legal responsibility. In the light of that evidence, and given the judge’s findings about premeditation and planning, it can readily be understood why his Honour was not prepared to view [the offender’s] moral culpability as more than ‘somewhat reduced’.⁵

Like criminal responsibility, ‘moral culpability’ is a term often used in the criminal courts but rarely examined. Recently, in Director of Public Prosecutions v Herrmann, the Court of Appeal said:

Assessing culpability is a central part of the sentencing court’s task in every case. It is an express objective of the Sentencing Act to ‘ensur[e] that offenders are only punished to the extent justified by … their culpability and degree of responsibility for their offences’.

In assessing an offender’s ‘moral culpability,’ the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged — and punished — often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated.⁶

In R v Verdins,⁷ the Court developed what had earlier been said in R v Tsiaras⁸ about the ways in which impaired mental functioning at the time of the offending may reduce the offender’s moral culpability – as distinct from his/her legal responsibility for the offence. The Court there said:

Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:

• a.  Impairing the offender’s ability to exercise appropriate judgment;

• b.  Impairing the offender’s ability to make calm and rational choices, or to think clearly;

• c.  Making the offender disinhibited;

• d.  Impairing the offender’s ability to appreciate the wrongfulness of the conduct;

• e.  Obscuring the intent to commit the offence; or

• f.  Contributing (causally) to the commission of the offence.⁹

As the Verdins decision itself makes clear, that list was compiled from a series of cases, both Victorian and interstate, where courts had sought to explain why the impact of a particular impairment of mental functioning justified the view that the offender’s moral culpability was reduced, as compared to an offender who had done the same thing but without that operative impairment.

In each of those cases, as in Verdins itself, the court was giving expression – for the most part, unconsciously – to an intuition that ‘the harshness of the moral judgment’ to be made should be moderated.

We have already seen Professor Lacey’s identification of the key capacities as cognition and volition. In his 2007 book ‘Answering for Crime’,¹⁰ Professor Anthony Duff was also concerned with capacity theory, but expressed the idea somewhat differently.

Duff speaks of the ‘responsible agent’ as one who is ‘capable of recognising and responding to the reasons that bear on his situation’, that is, is able to weigh ‘in deliberation’ the considerations by which his actions and thoughts could be guided.¹¹ A responsible agent is one who has a ‘capacity for rational thought and action’.

It follows, Duff argues, that the criminal law’s specification of relevant states of mind rests on the assumption that:

the specified intentions and beliefs are those of a rationally competent agent.

The critical question, both for the attribution of responsibility and for the assessment of moral culpability, is:

How seriously were the person’s capacities for rational thought and action impaired?

Further:

Were the beliefs, attitudes and emotions that informed his deliberations and actions within the realm of reason; or were they so disordered, so detached from reason, that he was not operating within that realm at all?¹²

Making sense of Verdins on moral culpability

This conceptual framework enables us to make better sense of the language used in the Verdins examples: ‘ability to exercise appropriate judgment’, ‘ability to make calm and rational choices or to think clearly’, ‘ability to appreciate the wrongfulness of the conduct’.

Although the phraseology used in the cases varies widely, certain themes recur:

• capacity for consequential thinking,¹³ ability to appreciate the consequences likely to follow;¹⁴

• insight and understanding concerning the act and its potential harm;¹⁵

• capacity to make reasoned decisions,¹⁶ ability to reason;¹⁷

• capacity to behave rationally and to control behaviour.¹⁸

Let us take an example from 2009, which concerned sexual offending by a person with an intellectual disability. In Director of Public Prosecutions v Patterson, the Court said:

it is significant to the assessment of moral culpability that [the offender] has a reduced capacity for rational judgment as compared with a person without his mental impairment. … [His] lack of insight manifests itself in an inability to understand either the seriousness of what he has done or the gravity of its impact on his victims.

At the same time, it seems clear that he is capable of some degree of self-control. … Similarly, he is not without the ability to make moral judgments, as is shown by his acknowledgment to [the psychiatrist] that it was wrong to engage in non-consensual sexual contact, and by his repeated apologies to the victim of these rapes.

In our view, [his] moral culpability for this serious offending should be viewed as somewhat reduced by virtue of his mental impairment, but by no means eliminated.¹⁹

A different example comes from the Court of Appeal’s 2020 decision on personality disorders, Brown v The Queen.²⁰ In that case, the forensic psychiatrist had concluded that there was a causal link between the offender’s personality disorder and the arson offences which she had committed. In his view, the disorder:

• Had a ‘very significant’ impact on her ability to exercise appropriate judgment, both in the sense that the offending behaviour was engaged to facilitate her return to custody, which itself was motivated by her lack of ability to integrate into society due to her disorder; and secondly, that she could not understand the impact of her fire-lighting behaviour ‘to the extent that a person without personality disorder would’;

• Contributed to her making irrational choices, although there was no evidence that her thinking was disorganised or that she was not calm, consistent with an organised, delusional belief system;

• Caused her to fail to experience the inhibitory mechanisms that most people would experience;

• Prevented her from having any emotional awareness that the conduct was wrong on a ‘deeper moral level’, despite her understanding that her conduct was legally wrong (given her motivation for the behaviour was said to be for the purpose of being returned to custody); and

• Contributed causally to the commission of these offences, as any causal explanation for her offending without reference to personality disorder would be ‘fatuous and empty’.²¹

The Court accepted that the offender’s condition ‘significantly impaired her judgment’ and ‘fundamentally impaired her ability to act rationally, regulate her conduct and fully understand the consequences’.²²

More recently, in Herrmann, the judge accepted expert evidence that the offender’s severe personality disorder had led him to see the world in ‘a profoundly abnormal way’. It had severely impaired his ability ‘to exercise appropriate judgment, to think clearly, to make calm and rational choices’.²³

What, then, should be made of the proposition – developed through the Court of Appeal’s jurisprudence on Verdins – that a reduction in moral culpability depends on it being shown that there was a ‘realistic connection’ or a ‘causal link’ between the impairment and the offending?²⁴ As the test was formulated in one decision, the offender needs to show that the condition ‘directly contributed to the commission of the offences’.²⁵

This requirement can be understood as another way of approaching the assessment of the impact of the condition on the offender’s mental processes. The judge asks herself, ‘Can I be satisfied that, but for the impairment of mental functioning, the offence would not have been committed or, alternatively, would not have been committed in the way it was?’

The judge is endeavouring to determine the extent to which the impairment of functioning was actually operative at the time, and whether it had such an effect that it can sensibly be said of the offender that what he did was in a relevant sense out of his control.

Going back to Professor Lacey, the judge is doing her best to evaluate the degree to which the relevant condition impaired those critical aspects of human capacity: cognition and volition. And ‘out of her control’ really means ‘involuntary’, that is, not an exercise of volition.

The nature of the offending conduct itself can provide important insights into the offender’s mental functioning at the time of the offending. Thus, in Carroll v The Queen, the Court said:

[As to] moral culpability, the question for the Court is whether the evidence establishes — on the balance of probabilities — that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?

There was no evidence of that kind in the present case. It is true that [the expert] diagnosed the appellant as suffering from alcohol dependence, kleptomania, pathological gambling, voyeurism and fetishism. But these diagnoses were simply descriptive of the appellant’s behaviours as exhibited over many years. There was no suggestion … that the offending was attributable to any causative mental impairment.

The evidence was all to the contrary. The appellant’s offending consisted of persistent, purposeful behaviour over a long period, conduct directed quite deliberately at his own sexual gratification and – equally often – at causing distress to his victims, both by what he said and by what he did. It is clear from the appellant’s actions that, as her Honour found, he knew what he was doing. Indeed, he acted with guile in pursuing his ends.²⁶

And again, in Sikalokoski v The Queen, the Court said:

While I accept that the principles stated in R v Verdins can apply to premeditated offending, it does not follow that evidence of management, planning and implementation are irrelevant to their application. Premeditation is one thing. Extensive, intricate and ongoing planning and management may be another. Evidence of intricate planning and management can be relevant in at least two ways. First, such evidence can help to indicate the level of severity of an individual’s mental condition and the extent to which it affects their capacity to function. Second, it can be relevant in assessing the existence or the strength of any causal link between the condition and the offending.²⁷

And in Director of Public Prosecutions v Kumas, the Court said:

The offending conduct — engaging in multiple sales over a period of time (including being able to obtain the drugs and the weapons) — is the conduct of a functioning, rational person, able to act purposefully and strategically in his own interests. As we have noted, [the offender] was fully aware of the risks of detection and punishment and evidently decided that the potential benefits outweighed the risks. As he candidly admitted to [the psychiatrist], his motivation was purely financial: to make money in order to ‘catch up’ with his friends. It follows, in our view, that there was little basis for viewing [his] moral culpability as reduced — or the need for general deterrence as moderated — on account of his mental functioning.²⁸

A separate class of cases is concerned with ‘concurrent causes’, typically, intoxication operating in conjunction with mental illness or cognitive impairment.²⁹ Where offending occurs in circumstances where the offender was affected by drugs or alcohol, the fact that a mental disorder explains the offender’s recourse to the intoxicant does not mitigate the offending.³⁰

Yet another class is concerned with the triggering of a condition by the offender’s own action, whether it is the cessation of medication³¹ or the taking of a drug that operates as the trigger. In Wright v The Queen, the offender stopped taking his medication and restarted taking methamphetamine, which caused a recurrence of his schizophrenia. The Court upheld the judge’s conclusion that the offending was attributable to the drug-taking, not the mental illness.³²

Again, in Byast, the Court said:

Ordinarily, the fact that a person was in a manic state at the time of committing a criminal offence would be likely to warrant significant mitigation of sentence. The degree of mitigation would, of course, depend on what the expert evidence showed about the extent to which the offender’s capacity for decision-making and rational judgment was impaired by the mania, such that the offending conduct could properly be attributed to the mental illness, rather than to choices made by the offender for which he/she should properly be held responsible.

The position is dramatically different, however, in a case like the present where the onset of mental illness is not beyond the offender’s control but is, rather, attributable to the offender’s own decisions. As the judge found, the appellant’s relapse into a state of mania at the time of the offending was attributable to him failing to take antipsychotic medication as he knew he should have done. The relapse was contributed to by his abuse of illicit substances in the weeks and months leading up to the offending. …

Given those findings, the judge was entitled to view the appellant as to a very large extent responsible — and accountable — for the state of mania in which he caused this terrible accident.³³

A question that remains to be explored in an appropriate case is the question left open in Manariti v The Queen – whether the decision to cease taking medication is truly a ‘rational’ decision.³⁴

Conclusion

As Professor Lacey has argued elsewhere, law is a social practice.³⁵ It is not a self-contained or self-informing discipline. Doing law better means learning – being ready to learn – from other disciplines.

The law on sentencing and mental illness has evolved through courts learning from the disciplines of forensic psychiatry and psychology. The 2017 Practice Note on ‘Expert Reports on Mental Functioning of Offenders’,³⁶ for example, was the product of a collaborative exercise in which judges and criminal law practitioners were guided by forensic psychiatrists and psychologists. In the same way, it was the expert evidence before the sentencing court in Brown³⁷ that led to the change in the law on the consideration of personality disorders.

In this paper, I have suggested that the operation of the criminal justice system will be enhanced if judges and practitioners come to understand better the nature of the judgments we have to make about responsibility and culpability. Achieving that objective will require a continued readiness to learn from others.

Ethical standards

Declaration of conflicts of interest

Chris Maxwell has declared no conflicts of interest.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.

Notes

1 Byast v The Queen [2021] VSCA 344, [5] (“Byast”).

2 Oxford University Press, 2016, pp 27–31.

3 N Naffine, Human Agents in Criminal Law and its Scholarship, (2011) 35 Crim LJ 51, 53; see also Bronitt, S and McSherry, B (2010), Principles of Criminal Law (3rd ed), 38.

4 [2011] VSCA 311, [23].

5 Emphasis added see also Davies v The Queen [2019] VSCA 66, [295]; KR v The Queen [2012] NSWCCA 32, [20]–[22].

6 [2021] VSCA 160, [13]–[14] (“Herrmann”).

7 (2007) 16 VR 269 (“Verdins”).

8 [1996] 1 VR 398.

9 (2007) 16 VR 269, [26].

10 RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law, Hart Publishing, 2007.

11 Ibid 39.

12 Ibid 291.

13 Edwards v The Queen [2020] VSCA 339, [31].

14 DPP v Sokaluk [2013] VSCA 48, [37], Qui v The Queen [2019] VSCA 147, [73].

15 DPP v Weidlich [2008] VSCA 203, [17].

16 Veerman v The Queen [2012] VSCA 194, [22].

17 Tran v The Queen [2012] VSCA 110, [21], DPP v Boyles (a pseudonym) [2016] VSCA 267, [42].

18 DPP v Moore [2009] VSCA 264, [7].

19 [2009] VSCA 222, [47]–[49].

20 [2020] VSCA 212 (“Brown”).

21 Reasons, [35].

22 Brown [2020] VSCA 212, [80], [82].

23 [2021] VSCA 160, [52].

24 Carroll v The Queen [2011] VSCA 150; Charles v R (2011) 34 VR 41; DPP v O’Neil (2015) 47 VR 395.

25 R v Shafik-Eid [2009] VSCA 217, [27].

26 [2011] VSCA 150, [20]–[22].

27 [2012] VSCA 130, [28]–[29].

28 [2021] VSCA 215, [64]; see also Smith v The Queen [2020] VSCA 165, [42].

29 Rakatau v The Queen [2021] VSCA 76.

30 Johnston v The Queen [2013] VSCA 362, [15].

31 DPP v Boyles (a pseudonym) [2016] VSCA 267, [433].

32 [2015] VSCA 333, [43]–[45].

33 [2021] VSCA 344, [40]–[42].

34 [2015] VSCA 160, [14].

35 N Lacey, Philosophical Foundations of the Common Law: Social, Not Metaphysical, in J Horder (ed), Oxford Essays in Jurisprudence (2000).

36 https://www.supremecourt.vic.gov.au/law-and-practice/practice-notes/sc-cr-7-expert-reports-on-mental-functioning-of-offenders.

37 [2020] VSCA 212.