I am grateful to Victor Tadros for helping me to refine my thinking on certain key points in this paper.

1. For general discussion see Fletcher, George, Rethinking Criminal Law (Boston, MA: Little Brown and Company, 1978) at ch. 10Google Scholar [hereinafter Fletcher]; Bayles, Michael, “Character, Purpose and Criminal Responsibility” (1982) 1 L. & Phil. 5 Google Scholar; Duff, R. A., “Choice, Character and Criminal Liability” (1993) 12 L. & Phil. 345 Google Scholar, hereinafter Duff.

2. See generally Tadros, Victor, “The Characters of Excuse” (2001) 21 Oxford J. Legal Stud. 517 Google Scholar, hereinafter Tadros. For further thoughts on the feasibility of desirability of a unified theory of excuses see Smith, K.J.M. & Wilson, William, “Impaired Voluntariness and Criminal Responsibility” (1993) 13 Oxford J. Legal Stud. 69.Google Scholar

3. See discussion on provocation below.

4. See discussion on automatism below.

5. See discussion on duress below.

6. Ibid.

7. A rationale which I shall later suggest may be the best account of of the defence of automatism

8. Fletcher, supra note 1 at 799-807.

9. Moore, Michael, “Causation and the Excuses” (1985) 73 Cal. L. Rev. 1091 Google Scholar.

10. See generally Duff, R.A., “Rule Violations and Wrongdoings: What Does the Criminal Law Say to Citizens?” in Shute, S. & Simester, A., eds., Criminal Law Theory: Doctrines of the General Part (Oxford: Oxford University Press, 2002).Google Scholar

11. Morse, Stephen J., “Diminished Capacity” in Shute, Stephen, Gardner, John & Horder, Jeremy, eds., Action and Value in Criminal Law (Oxford: Clarendon Press, 1993) 239.Google Scholar

12. Kadish, Sanford H., “Excusing Crime” (1987) 75 Cal. L. Rev. 257 Google Scholar; Dressler, Joshua “Reflections on Excusing Wrongdoers: Moral Theory, New Excuses and the Model Penal Code” (1988) 19 Rutgers L.J. 671 at 675.Google Scholar

13. An ethical viewpoint dating back to Aristotle. See, for example, Aristotle, Nicomachean Ethics (Harmondsworth, UK: Penguin, 1953) at bk. 3, ch. 5 and 6 Google Scholar. See Huigens, Kyron, “Virtue and Criminal Negligence” (1998) 1 Buffalo Crim. L. Rev. 431.Google Scholar

14. See Smith, K.J.M., A Modern Treatise of the Law of Criminal Complicity (Oxford: Clarendon Press, 1991).Google Scholar

15. See next section.

16. [1998] (1998) 1. Cr. App. R. 143

17. Ibid. at 145.

18. R. v. Acott [1997] 1 All. E.R. 706.

19. Ibid. at 712-13. See also Horder, Jeremy, Provocation and Responsibility (Oxford: Oxford University Press, 1992) at ch. 9.CrossRefGoogle Scholar

20. For further discussion see infra at footnote 60.

21. For elaboration see Norrie, Alan W., Crime, Reason and History (London: Weidenfeld and Nicolson, 1993) at ch. 3.Google Scholar

22. Gardner, John, “The Gist of Excuses” (1998) 1 Buffalo Crim. L. Rev. 575 at 593Google Scholar. [hereinafter Gardner]. I use the terminology ‘reasons’ theory, following Nicola Lacey’s example, rather than “character” theory in order to differentiate it from another account of criminal excuses in which the fact the actor acted ‘out of character’ plays the central constitutive role.

23. Gardner, John, “Justifications and Reasons” in Simester, A.P. & Smith, A.T.H., eds., Harm and Culpability (Oxford: Clarendon Press, 1996) 103.Google Scholar

24. Ibid. at 107-14.

25. Representative of the literature is Gardner, supra note 22; Huigens, supra note 13; Duff, supra note 1; Bayles, supra note 1.

26. For elaboration see Horder, Jeremy, “The Irrelevance of Motive in Criminal Law” in Horder, Jeremy, ed., Oxford Essays in Jurisprudence 4th series (Oxford: Oxford University Press, 2000) 174.Google Scholar

27. Horder, Jeremy, “Self Defence, Necessity and Duress” (1998) XI Can. J. L. & Juris. 143 Google Scholar. The external crisis is not however, central to necessity where there are ex ante ways of validating such actions.

28. In this, Gardner adopts a view previously espoused by Kadish, in “Excusing Crime”, supra note 12.Google Scholar

29. See for example Fletcher, supra note 1; Lacey, Nicola, State Punishment (London: Routledge, 1988) at 65–68, 71-73Google Scholar.

30. Gardner, supra note 22 at 576-78.

31. Hornby, N., How to Be Good (London: Viking 2001) 1.Google ScholarPubMed

32. See Gardner, supra note 22 at 568.

33. See infra note 46.

34. Moore, Michael, Placing Blame (Oxford: Clarendon Press, 1997) at 241 Google Scholar et seq. For an extended critique of this weakness within character theory, see Norrie, Allan W., Punishment, Responsibility and Justice (Oxford: Clarendon Press, 2000) 127-30CrossRefGoogle Scholar.

35. Gardner, supra note 22 at 576-78.

36. Lacey, Nicola, “Partial Defences to Homicide” in Ashworth, A. & Mitchell, B., eds., Rethinking English Homicide Law (Oxford: Clarendon Press, 2000).Google Scholar

37. Lacey, supra note 29 at 65-68, 71-73.

38. Duff, supra note 1 at 363.

39. Coles [1994] Crim. L. Rev. 820. R. v. Coles [1995] 1 Cr. App. R. 157

40. Ibid. at 587. this number appears to be incorrect

41. ‘Excuses are available only to those whose actions have intelligible rational explanations, i.e. whose actions properly reflected reasons for action that they took themselves to have.’ Gardner, , “Justifications and Reasons” in Simester, & Smith, , eds., supra note 23 at 103, 121–22.Google Scholar

42. Gardner, supra note 22 at 589.

43. The only concession to individual weakness that Gardner would make is perhaps in developing exemptions, e.g., defences of impaired capacity extending beyond the remit of murder.

44. Kopsch (1927) 19 Cr App R 50 CCA we cant find this; and see Huigens, supra note 13.

45. Hart, H.L.A., Punishment and Responsibility (Oxford: Clarendon Press, 1968) at ch. 2 [hereinafter Hart] Google Scholar; and see Kadish, “Excusing Crime” supra note 12Google Scholar; Smith, & Wilson, , supra note 2.Google Scholar

46. Hart, ibid. at ch. 2; Lucas, J.R. On Justice (Oxford: Oxford University Press, 1980) at 137-38Google ScholarPubMed.

47. Hart, ibid. at 155

48. R v. Caldwell [1982] A.C. 341, the leading case on criminal damage, was once though to represent a clear ex Pression of a system of blame based upon capacity theory. See Field, S. & Lynn, M., “The Capacity for Recklessness” (1992) 12 LS 74 at 87 Google Scholar. Legal Stud. ? cannot find there

49. See, for example, Kadish, Sanford H., (1987) 75 Cal. L. Rev. 257 Google Scholar; Gardner, supra note 22 at 587.

50. Hence also the standard of fortitude required in duress of ‘a sober person of reasonable firmness’. See Duff, supra note 1 at 346.

51. Meyerson, D., “Fundamental Contradictions in Critical Legal Studies” (1991) 11 Oxford J. Legal Stud. 439 Google Scholar

52. An exemption might be appropriate in cases such as these where a person’s moral responsibility for his character is so attenuated. See below.

53. Cf. Tadros, supra note 2, who argues at 511-16, surely correctly, that it is quite possible to ground an excuse in impaired capacity to conform, although the incapacity reflects badly on the actor, so long as the actor does not disclose another vice in succumbing to the context. I explore this view later on. The view, currently being advanced, is that crisis nevertheless plays a key role in drawing the boundaries between actions which are a mark of an anti-social character and those which are mark only of a defective character.

54. As Antony Duff puts it ‘we are our characters, and are for that reason responsible for the actions which flow from them’, Duff, supra note 1 at 367.

55. Namely, provocation.

56. Kadish, supra note 12.

57. Lacey, supra note 36 at 107, 120-21.

58. Burns v. Bidder [1967] 2 Q.B. 227.

59. Bratty v. A.G. for Northern Ireland [1963] A.C. 386.

60. So in Ryan pulling the trigger of a loaded gun as a reflex action was held not to amount to an involuntary killing because the actor had primed himself to do just that—pointing the gun in admonition at the victim with the safety catch off. He could not be heard to argue that ‘it was not his doing; cf. Kelman, , “Interpretive Construction in the Substantive Criminal Law (1981) 33 Stan. L. Rev. 59.Google Scholar

61. R v. Lipman [1970] 1 Q.B. 152. This is clearly so where the actor becomes intoxicated to give himself Dutch courage.

62. Moore, G. E. Ethics (1912)Google ScholarPubMed; Williams, G, Textbook of Criminal Law (London: Stevens 1983) 148.Google Scholar

63. Kay v. Butterworth (1945) 61 TLR 452; Sibbles [1959] Crim L. Rev. 660. TLR? Times L. Rep.?

64. Robinson, Paul H., “Causing the Conditions of One’s Own Defence” (1985) 71 Va. L. Rev. 1.Google Scholar

65. Robinson, Paul H., Criminal Law Defences (St Paul, MN: West Publishing, 1984) 268 Google Scholar; cf. Kadish, supra note 12.

66. Cf. Tadros, Victor, “Insanity and the Capacity for Diminished Responsibility” (2001) 5 Edinburgh L. Rev. 1 at 18.Google Scholar

67. R. v. T [1990] Crim. L. Rev. 256.

68. See for example Bratty v. A.G. for Northern Ireland [1963] A.C. 386 and discussion in Smith & Wilson, supra note 2 at 79.

69. Cf. R. v. Rabey [1980] 2 S.C.R. 513 Can.

70. Diminished responsibility also has no requirement that the killing causally linked to the defendants mental abnormality. See Sullivan, G.R., “Intoxicants and Diminished Responsibility” (1994) vol. num? Crim. L. Rev. 156.Google Scholar

71. R. v. Kingston [1993] 4 All. E.R. 373, at 380.

72. Wilson, William, “Involuntary Intoxication: Excusing the Inexcusable” (1995) 1 Res Publica 25 Google Scholar; Sullivan, G.R., “Making Excuses” in Simester, & Smith, , supra note 10. [hereinafter Sullivan]CrossRefGoogle Scholar

73. R. v. Kingston [1994] 3 All. E.R. 353.

74. The decision has the strong support of Sir John Smith, who argues that it is not an excuse grounded in morality that an actor is induced by the deceit or otherwise of another to form an intention which would otherwise not be present.

75. [1994] 3 All. E.R. 353 at 370.

76. Williams, Glanville, Textbook of Criminal Law (London: Stevens, 1983).Google Scholar

77. This perhaps explains the way intoxication to operate to diminish the gravity of the wrong committed rather than to exculpate entirely. So a person who kills while intoxicated may be guilty of manslaughter rather than murder, or maliciously inflicting grievous bodily harm rather than causing grievous bodily harm with intent although in each case definitional mens rea may be absent, DPP v. Majewski [1977] A.C. 443; It also perhaps explains the once popular idea that intoxication could only be used to negate crimes of ulterior intent in which intention plays a constitutive role in the definition of the offence rather than describing the conditions of responsibility for that offence.

78. Cf. Moore, supra note 34 at 24.

79. [1994] 3 All. E.R. 353 at 370.

80. For discussion see Sullivan, supra note 72.

81. Cf. Fletcher who insists that bad character is of the essence of the retributive theory of punishment. He distinguishes between those acts which are a mark of character, even if that character has been foisted on the defendant against his will say by penury or brutalisation, and those which represent a temporary derangement of character, Fletcher, supra note 1 at 802.

82. In fact the court operated on the assumption that the basis of her excuse was a temporary impairment of practical reasoning. It was the fact that she was confused and did not know what she was doing which excused rather than that her act was out of character, whether or not it was.

83. Sullivan, supra note 72 at 137.

84. Section 27 (3) Theft Act 1968; section 6(3) Sexual Offences Act 1956. See Sullivan, supra note 72 at 143-44.

85. See for example Broome v. Perkins [1987] R.T.R. 321.

86. ‘The idea that a normal actor, who commits a crime intentionally and under no physical or psychological compulsion, might have been unable to choose to act otherwise threatens to undermine blame at its foundation. But the notion is less threatening as applied to those suffering from mental disease, not simply in the sense of a medically recognised disorder, but as reflecting the common sense moral judgement that the person lacks the minimal capacities for rational action required to be a moral agent.’ Kadish, supra note 12 at [author will provide page pinpoint].

87. For further discussion see Wilson, William, “Involuntary Intoxication: Excusing the Inexcusable”, supra note 72 at 34–36.Google Scholar

88. For a different view see Tadros, supra note 2.

89. No doubt if the defendant in T had directed her wrongdoing against the person of the rapist rather against an innocent bystander the excuse would, ironically, have been less likely to succeed. Cf. Lacey, “Partial Defences to Homicide” in Ashworth & Mitchell, supra note 36 at 121; Morse, supra note 11 at 265.

90. Horder, supra note 27 at 159.

91. R. v. Howe [1987] 1 All. E.R. 771.

92. Per Lord Edmund-Davies in DPP v. Lynch [1975] 1 All. E.R. 913 at 917 approving the statement of Murnaghan J. in A.G. v. Whelan [1934] I.R. 518 at 526. Similar rationales are used by the Law Commission in Law Commission No. 83 Defences of General Application, para. 2.28, London: HMSO. 1977); also the American Model Penal Code, section 2.09 (1).

93. Cf. R. v. Gill (1963) [1963] 2 All. E.R. 688; R. v. Hudson Hudson and Taylor [1971] 2 Q.B. 202.

94. Alldridge, P., “The Coherence of Defences” (1983) Crim. L. Rev. 665.Google Scholar; Smith, K.J.M., “Duress and Steadfastness: In Pursuit of the Unintelligible” (1999) Crim. L. Rev. 363 Google Scholar

95. Ibid.

96. See for example R. v. Martin [1989] 1 All. E.R. 652; R. v. Conway [1988] 3 All. E.R. 1025; R. v. Pommell [1995] [1995] 2 Cr. App. R. 607; and see Smith, supra note 94.

97. A routine example is that of a motorist who breaks the speed limit on a motorway in order to escape intimidation by a lorry driver who is ‘tailgating’ him at high speed. For the same reason that the citizen could not properly be convicted of reckless driving (gravity of potential harm to driver justifies the risks which avoiding action will entail for others) so also the motorist should not be guilty of breaking a speed restriction. The speed limit is in place to protect us from the risk of injury, not to subject us to such risks. He is not, however, claiming a mere personal justification grounded in the fact that speeding is a reasonable choice to make where the alternative is subjection to a mortal risk. Rather he is claiming that he is acting as reason would have him act and that his reasons are guiding reasons, that is, true for all people at all times rather than personal to him in his emergency.

98. Even this is not controversial. See Tadros, supra note 2 at 517.

99. For a helpful discussion see Duff, R.A., “Rule Violations and Wrongdoings: What does the Criminal Law Say to Citizens?” in Shute, & Simester, , supra note 10.Google Scholar

100. Law Commission (No. 218) Legislating the Criminal Code: Offences Against the Person and General Principles (London: HMSO, 1993).

101. See for example Horder, Jeremy, “Diminished Responsibility and Provocation” (1999) 10 Kings Col. L. RevGoogle Scholar; Gardner, John & Timothy, . Macklem, , “Compassion without Respect? Nine Fallacies in R. v. Smith” (2001) voLnum? Crim. L. Rev. 623.Google Scholar

102. See also R. v. Bowen [1996] 4 All. E.R. 837; R. v. Martin (2000) vol.num? Crim. L. Rev. 615.

103. In this I agree wholeheartedly with Victor Tadros. See Tadros, supra note 2.

104. Dressler, Joushua J., “Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits” (1989) 62 S. Cal. L. Rev. 1331 at 1369 Google Scholar is the pinpoint no. correct?; for a similar view see Kadish, S., “Moral Excess” (2001) 32 McGeorge L. Rev. 1 at 15 Google Scholar. (Reference belongs to a different paper This has not always been Kadish’s position it seems: ‘(being) unnaturally cowardly … is the very ground for blaming him. It could hardly serve as an excuse. Such defences are not accorded in moral any more than in legal judgment’: Kadish, , “Excusing Crime” supra note 12 at 276 Google Scholar.

105. See Smart, Ann, “Criminal Responsibility for Failing to do the Impossible” (1987) 103 L. Q. Rev. 532 at 537-42.Google Scholar

106. Author’s emphasis. Cf. L.J., James R. v. Miller [1983] A.C. 161, 175-6.Google Scholar

107. R. v. Sheppard [1981] A.C. 394

108. R. v. Emery (1993) 14 Cr. App. R. (S.) 394.

109. ‘Impossibility may be relative rather than absolute, and the defence may have a stronger flavour of justification than excuse in cases where the person omitted to act in order to avoid harming an even greater interest.’ Ashworth, A.J., “The Scope of Criminal Liability for Omissions” (1989) 105 L.Q. Rev. 424 at 438 Google Scholar.

110. Cf. Gardner, supra note 22 at 580-86.

111. See supra note 48.

112. In many jurisdictions including England duress is not available to murder.

113. Cf. the Law Commission’s most recent proposals on involuntary manslaughter.

114. Emery is in fact consistent with an out of character based approach in which the actor’s global character can be dissociated from the character displayed at the relevant time. In the Court of Appeal’s view she was not giving an account of why she was a coward in general but why, as a person of reasonable firmness, she had acted against her own settled dispositions in failing to intervene in this particular type of situation. This was because, over a period of time, her capacity to resist threats had been eroded as would, moreover, that of the reasonable woman enduring similar treatment. See Wilson, William, Criminal Law: Doctrine and Theory (Harlow: Longmans, 2003) at 275.Google Scholar

115. More typical of the traditional domestic response is Hegarty in which the defendant pleaded duress to a charge of robbery and possession of a firearm. He claimed that he had been threatened with violence against his family if he refused. In support of his plea he adduced medical evidence to the effect. The judge refused to admit supporting evidence that he was emotionally unstable and in a ‘grossly elevated neurotic state’, conditions which had previously been relied upon to substantiate diminished responsibility for the killing of his wife. The Court of Appeal in England dismissed the appeal on the ground that the characteristics he was relying upon were inconsistent with the notion of the ‘sober person of reasonable firmness’ referred to in the test for duress.

116. R. v. Bowen [1997] 1 W.L.R. 372 [1996] Crim L. Rev. 577 CA.

117. R. v. Martin [2000] 2 Cr. App. R. 42

118. See J.C. Smith’s commentary on the case Martin (DP) [2002] Crim. L. R. 136 at 138-39. See footnote 102.

119. And so is also consistent with Rodgers and Rose, supra note 16. Cf. Tadros, Victor, “The Structure of Defences in Scots Criminal Law” (2003) 7 Edin. L. Rev. 60 for a comparable analysis.Google Scholar

120. R. v. Clegg [1995] 1 A.C. 482.

121. R. v. Martin [2003] Q.B. 1 [2002] Crim. L. Rev. 136

122. Shaw v. R. [2002] Crim. L. Rev. 140.

123. Tadros, supra note 2 at 499.

124. Lord Lane C.J. in R. v. Graham [1982] 1 All. E.R. 801 at 806.

125. See discussion in text following supra note 48.

126. Hart note 45 at 33.

127. R. v. Richens [1993] 4 All. E.R. 877.

128. Cf. Joshua J.|Dressler, “Battered Women Who Kill Their Sleeping Tormentors” in S.|Shute & A.|Simester, eds., supra note 10, 259.

129. C.|Wells, “Provocation: the Case for Abolition” in A.|Ashworth & B.|Mitchell, eds., supra note 36 at 104-06.

130. Reasons theory clearly provides one.

131. R. v. Doughty (1986) 83 Cr. App. R. 319.

132. R. v. Johnson [1989] 2 All. E.R. 839.

133. R. v. Lynsey [1995] 3 All. E.R. 654 not Morhall as in text

134. [1996] 2 All. E.R. 1033.

135. R. v. Smith [2001] 1 A.C. 146 (H.L.)

136. See, for example, the comments of Professor Sir John Smith in (2000) Crim. L. Rev. at 1004; Jeremy Horder, “Between Provocation and Diminished Responsibility”, supra note 101; cf. Mackay, R., “Diminished Responsibility and Mentally Disordered Killers” in Ashworth, & Mitchell, , eds., supra note 36.CrossRefGoogle Scholar

137. Cf. Smith, & Wilson, , “Impaired Voluntariness and Criminal Responsibility”, supra note 2.Google Scholar

138. As Lacey puts it: ‘The seriously involuntarily intoxicated defendant is simply not engaged in the usual process of practical reasoning, and it seems obtuse to insist on judging her as if she is or consigning her to the category of exemptions.’ Lacey, “Partial Defences to Homicide” in Ashworth & Mitchell, eds., supra note 36 at 121.

139. Tadros, supra note 2.

140. See for example Coles, supra note 39.

141. R. v. Reid (1992) [1992] 3 All E.R. 673

142. Ibid.

143. As R. v. T in the field of automatism also signals.