Determining The Degree Of Culpability In A Conduct

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Psychiatric evidence will be central in many of these cases, determining the degree of moral and legal responsibility has proved difficult, as some mental disorders do not effortlessly interpret into gradations of legal culpability, determining the degree of responsibility remains a matter for the courts. The admissibility of such expert evidence is only if it is beyond the experience and knowledge of that court for the case.

Crucially the degree of responsibility, culpability is vital when it comes to sentencing mentally disordered offenders in determining the type of disposal and mitigation in potentially reducing the sentence. Traditionally, culpability has been linked to mental state at the time of the offence which reduced it because of the sufficient capacity needed to have moral responsibility.

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What is Culpability

Culpability can be viewed as acting internationally, knowingly, recklessly or negligently. Its nature can vary due to the nature of the offence and complicated by actions believed to be justifiable such as self-defence or under duress. One of many theories of defining culpability is the Theory of Choice, which encompasses capacity concepts, reflects the choice to act intentionally; knowingly or recklessly when an alternative could have been made, mens rea. This theory, however, struggles when the offence relates to negligence, in some instances mens rea is not required, where there does not seem to be a choice involved. Impulsive behaviours pose similar difficulties for this theory. Similarly, the theory struggles to explain culpable differences between actual harm and criminal attempts, as the choice is the same in both instances.

Fischer et al 2009 argues the existence of free will, in that are we really free to make a choice given the imposed influences of our upbringing and personality. However, there is a counter-argument that it is rationality that makes one culpable, not free will. The Law Commission acknowledges the difficulties of determining those with a moral capacity to act differently but chose not to from those who lack this capacity, in turn affecting the choice opted for.

Another theory of culpability is Character Theory which views acts as a creation of personality traits, stable patterns of thought and behaviour, therefore how responsibility does one have over one’s character. This theory can explain why someone might be culpably negligent if it is their character to be careless, and why some people may be given a lesser sentence if they are previously of god character. Conversely, it might explain the disparity in sentencing between BAME and other race, as well as their representation in custody. A difficult of this theory is determining what constitutes out of character and defining the previous character. This also proves more problematic for mentally disordered offenders in relation to whether the conduct is driven by the disorder or one’s character, particular challenge for this theory is personality disorder where the character is the disorder. The “Big, Black and Dangerous” the subtitle to the Prins Inquiry report and Ritchie Inquiry examined the death of black people psychiatric patients and the stereotype that black people as inherently dangerous and violent by nature. One wonders if character theory played a part in determining disposal and ultimately treatment administered.

Another theory of culpability, Agency theory which evaluates conduct on a spectrum of harm as intended as high to low for crimes of negligence. For mentally disordered offenders where harm is intended as a result of psychosis, this theory also struggles to explain the ascribed lower culpability. Defiance theory, on the other hand, attributes conduct to deliberate defiance of the law. This theory too struggles to explain conducts of negligence as these, for the most part, are not done intentionally. Behaviours of mentally disorder person, on the one hand, may be viewed as amounting to negligent behaviour on the grounds of reduced knowledge on one’s actions, therefore said not to be acting in defiance of the law, thereby possibly amounting to insanity. It is therefore evident that there is a lack of a clear theory of culpability and that some theories, in terms of culpability levels, favour some disorders over others.

Culpability and the Legal System

The existence of culpability within defined legal systems adds to the difficulties of assessing the role mental disorder plays when determining culpability. In England and Wales, having a mental disorder does not preclude defendants being responsible and therefore guilty of an offence. In this adversarial system, one can only be found to have diminished responsibility for murder or not culpable in case of insanity. However, within diminished responsibility offences, there exists a degree of culpability. In the case of R v Verdins, legal culpability in mental disorder is said to reduce if it impaired judgement of the offender; impaired ability to make rational choices or think clearly; made the offender disinhibited; impaired appreciation of the wrongful conduct, obscured intent or contributed casually to the offence. The Sentencing Council of England and Wales in their draft consultation document, which includes guidance on assessing culpability lists similar criteria as in R v Verdins, but these were criticised t for being ambiguous. The Council’s guidance adds elements such as medication compliance; insight into illness; help seeking etc which are largely linked to psychiatry, whilst elements of premeditation or pre-planning are not. The case of DPP v Weidlich , on the other hand, indicates clearly the culpability of a mentally disordered offender to their insight and understanding. This case highlights the relevance of psychiatric evidence in a case, though it is not clear on whether they should comment on culpability explicitly. However, although the draft consultation document acknowledges that culpability varies between cases, its also states that sentencers are not bound by expert opinion and that expert opinion may not be appropriate if the diagnosis is not backed up by clear indication of how it affects culpability. This implies that experts are expected to comment explicitly on culpability even though at stated above some elements are not directly linked mental disorder, raising the question raised earlier of expert commenting on areas outside their expertise.

Mental disorders and crimes of recklessness or negligence

Reckless means one knowingly exposes unnecessary risk to others and this is subjectively tested in England and Wales. The objective element of s reasonable person would have foreseen the risk was introduced in R v Caldwell and overturned in R v G. The varying context of occurrences does not mean recklessness will always necessarily mean the same in thing. Overall, having a mental disorder may reduce completely the level of culpability. However, in mental disorders such as personality disorders, recklessness is part of the disorder. That said, a conviction of recklessness for those with these disorders could occur if it has been deemed they were able to foresee the consequence of their actions. Similarly, in crimes of negligence, the accused takes a risk he or she ought to be aware of but is not and the standard of is based on an objective test. Arguably, the effects of the mental disorder may make individuals more negligent due to significant alteration in the individual’s perception of the world, rendering the objective testing unfair. Others argue that such crimes should never be culpable , whilst others argue that some types should be culpable on the grounds of failing to take precaution to avoid the risk. However, as long as the disorder does not lead to a state of insanity or automatism, the defendant can still be found guilty for their actions.

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