It is particularly in strict liability offences where the ECCR introduces more provocative outcomes. Currently, in these types of crimes, even a reasonable false belief is irrelevant. The accused will be convicted even without fault or public interest in doing so. Perhaps it is redundant to point out here that strict liability crimes are an exception to the general rule of liability. The liability is said to be strict because an accused will be condemned even if he had false beliefs about one or more elements that made his action criminal. The strongest argument used to justify these types of offences is probably convenience.501 Most of the strict liability offences are regulatory offences, so providing financial resources for prosecutions of minor offences that do not involve serious harm might be inefficient. There are also procedural reasons for having them, like the vulnerability of the victim in the courtroom.502 The proliferation of strict liability/regulatory offences sustain the above arguments. However, serious crimes like statutory rape are considered strict liability offences as well. In any case, a consistent and comprehensive proposal about false beliefs needs to contrast its impact against the current criminal law framework where strict liability offences play a pivotal role.
501 See A.P. Semester and G.R. Sullivan Simester and Sullivan’s Criminal Law (2013) at p182
502 There will be many cases where requiring a child under the age of 13 years to provide evidence
In the most recent comprehensive discussion about error of law/fact: “Ignorance of law: A philosophical Inquiry”,503 Husak openly defends “[…] that the mens rea of a criminal offense should be construed to require not only knowledge of the relevant facts but also knowledge of the applicable law”.504 This proposal, which contravenes the historical totemic maxim “ignorantia iuris neminem excusat”, is revolutionary to Lord Bridge who states: "… requiring not merely knowledge of the facts material to the offender's guilt, but also knowledge of the relevant law, would be revolutionary and, to my mind, wholly unacceptable”.505 This approach has been rejected in this research from the beginning. Following that route would have implied devoting the whole thesis to a discussion about the concept and extension of mens rea and whether or not it should include cognitive conditions. Instead, this research rests in a segregate study of knowledge, and consequently false beliefs, through the ECCR. For that reason, no proper discussions has taken place in this thesis about the concept, extent or levels of mens rea. Nor have we discussed whether the mental element should include volitional elements as well as cognitive ones. Operatively, only two kinds of coherent suggestions can be put forward to solve the problems facing cognitive conditions in a principled way. The first solution would be to implement, in addition to intention (volitional conditions), a cognitive dimension within the mental element of a crime. This is the proposal that Husak, based on the German dogmatic concept of ‘dolo malus’, defends. The other option would be to implement cognitive conditions outside of the mens rea element. This is the argument defended in this thesis.
There are two main reasons to support an autonomous and independent (from
mens rea) treatment of cognitive conditions: firstly, the enrooted conception existing
in common law jurisdictions that knowledge about institutional facts and the relevant law are not part of the mental element. It was examined extensively in chapter I that a consensus exists in the criminal legal scholarship that the mental condition only includes volitional conditions. To attempt to include cognitive conditions within the
mens rea would be, without a doubt, revolutionary. In fact, it was revolutionary and
controversial in the German dogmatic to do so. The fiercer disputes in the German
503 D. Husak Ignorance of Law: A philosophical Inquiry (2016) 504 Ibd at p2
dogmatic have been between defenders of the ‘dolo theory’ (that proposes a concept of dolus malus) and those of the ‘culpability (schuld) theory’ (who defend a concept of dolus naturalis). Thus, to persevere with the inclusion of cognitive conditions within the mens rea element, as Husak proposes, would require a solution much more intricate than supporters of this alternative can envisage.
Secondly, to include cognitive conditions in the mens rea element would contradict the many thousands of strict liability offences currently in force in the UK. In a legal system without a well-developed administrative law, as in the UK legal field, strict liability offences play a valuable role in the defence and preservation of the institutional normative order. For that reason, in those cases it may be consistent with the ends of the criminal law not to require intention to commit the criminal conduct in order to be convicted. In fact, this is the policy used by the administrative law in continental jurisdictions without any scholarly criticisms. As a result of the pivotal role of strict liability offences this research seeks to evaluate the cognitive condition in addition to and outside of the mens rea element. This approach does not contravene the current regulatory framework, so it would be possible to prima facie attribute criminal responsibility to an accused without proof of mens rea (cognitively- free), and later exclude responsibility because the accused lacks the epistemic conditions necessary for conviction.
It will be instructive to introduce how the ECCR would work in cases of statutory rape (strict liability offence) of a child under 13 years. This was the case in G506 where a boy of 15 engaged in sexual intercourse with a girl of 12 whom he believed (because she had so informed him) to be 15 years old. As mentioned above, in these cases of statutory rape the false belief that the victim was old enough to have sex is irrelevant507 and the outcome is always conviction. The result that the application of the ECCR criteria would deliver in this and similar cases would be different from the current solution. Once the volitional elements (mens rea) have been proved, an appraisal of the cognitive circumstances should be implemented. Thus, at the first instance, it should be assessed if the information and knowledge gathered during the perception process by G was enough to cast doubts or raise suspicions
506 (2006) EWCA Crim 821
about his belief (that the victim was 15). If this was the case, G should be convicted. In case the facts did not raise doubts in G about the victim‘s age, it should be considered whether an ordinary institutional user (rape being a clear offence of disassociation) in G’s circumstances should have inferred that the girl was under 13 years old. If this is the case, and no additional internal or external circumstance diminish G’s capacity to update his latent knowledge, G should be convicted of rape. But if an ordinary user in G’s circumstances would equally not have had doubts about the victim’s age, G should be acquitted. This outcome was reached in the above- mentioned case, HMA v Daniel Cieslack, where the High Court in Glasgow took the decision not to sentence and instead discharge absolutely a 19-year-old boy who plead guilty of rape of a girl under the age of 13. The absolute discharge clearly illustrates the potentially unjust outcome of a legal norm that declares criminally responsible an accused even though he is genuinely ignorant of one or more factors that made his action or omission criminal.
The ECCR approach differs and contradicts the rationale defended by Baroness Hale in G: the protection of minors from “[…] the harm, both physical and psychological, which premature sexual activity can do” and the purported reduction of protection that the excusatory effect of false beliefs will produce. It is beyond this research to discuss the good reasons why children aged 12 years old or younger should not engage in sexual intercourse. Beyond moral or good reasons to criminalise underage sexual intercourse, what is relevant is that as a society, this is the institutional deontic framework we expect to be respected from our fellow citizens. Perhaps it sounds impudent to suggest that where mechanical penetration of a penis into another person’s body is the pure brute fact, sexual intercourse between two consenting adults is the institutional fact, and thus, as a society we have institutionalized sex. As a result of this, we allow our kids and ourselves to socialise and interact with strangers, because we expect that our fellow citizens will respect this institutional deontic framework. Accordingly, the genuine function of Section 5 of the Sexual Offences Acts is not the protection of minors from “… the harm, both physical and psychological, which premature sexual activity can do” but to protect the expectation we have that the institutional deontic framework will be respected. Indeed, Section 5, as with any other criminal norm, is an exclusionary reason for action. It is a reason that every agent must take into consideration in his deliberation
process before action. When deliberating on whether to have sexual intercourse with someone else, the agent must consider Section 5 as an exclusionary reason not to have sexual intercourse with anyone under 13 years of age. Doing so, the agent entirely fulfils his responsibility as a law follower willing to do what is required.
Hence, Baroness Hale’s argument is founded on the premise that the widespread function ascribed to the criminal law is mainly deterrence. This commonly accepted argument rests on the idea that the use of criminal punishment will prevent the convicted or others from committing a criminal offence. However, this rationale is more than questionable. First, because members of the society are possibly motivated not by criminal punishment but by their own convictions. It would be difficult to accept that those not motivated by their personal convictions not to rape would be motivated by criminal punishment. As it was discussed earlier in this thesis,508 the function of criminal punishment is not deterrence (or retributivism either) but the recognition that the institutional expectations will be maintained even in cases of violation of the deontic institutional framework. It is the reaffirmation that the institutional framework is still valid even in the case of misuse or violation. However, even accepting the deterrence argument, Baroness Hale’s rationale that accepting the excusatory consequences of false beliefs will reduce this purported protection could be illogical. It is incoherent because nobody can be deterred by something he is not aware of. Neither the accused in G nor anybody in his circumstances could be psychologically coerced or intimidated by the criminal punishment of underage statutory rape because the accused acts with the personal conviction that he is having lawful sexual intercourse. In cases like G the consideration that the victim is underage is not contemplated in the deliberation process of somebody in his situation. It would therefore appear that a proper evaluation (through the ECCR) of the excusatory effects of false beliefs would be unlikely to undermine the purported deterrence of s5 (or any other criminal norm).
5.8 Conclusion
The onus is always on those who wish to change a current and valid part of the law both to persuade others that reform is necessary, and to provide a new coherent proposal. I hope that both requirements have been sufficiently reasoned and articulated in the introduction of Part II and this chapter. A feasible differentiation between brute and institutional facts, in the norm definition, has been amply discussed and hopefully in a persuasive manner. Also, the dissimilar perception of both types of facts justifies and supports a different model of attribution of responsibility for false beliefs about brute facts and institutional facts. Finally, the theoretical algorithmic ECCR has passed its first acid test, providing a coherent and fair outcome to false beliefs about brute facts, being respectful to the current scope of the mens rea element. So far the proposal to provide a principled fresh approach to false beliefs seems to have survived the first round. It is now time to demonstrate that the ECCR can also provide a principled solution for false beliefs about institutional facts. This will bring a new challenge, as the evaluative appraisal that the perception of institutional facts requires is more prone to catalyse false beliefs about the extension or interpretation of the fact itself. This challenge, and the feasibility of differentiating institutional facts from the institutional command, will be the aims of the next chapter.
CHAPTER 6
FALSE BELIEFS ABOUT INSTITUTIONAL FACTS
6.1 Introduction
The previous chapter introduced the distinction between false beliefs about brute and institutional facts. The initial conclusion was that the perception process is different when considering each kind of fact: instantaneous in the former and evaluative in the latter. Chapter 5 started with a discussion about the differences/similarities between brute and institutional facts. This chapter will examine false beliefs about institutional facts. Section 6.2 will discuss the differences between false beliefs about institutional facts and false beliefs about the institutional command. By doing so, this section will discuss how the evaluative nature that knowledge of institutional facts requires affects false beliefs about them in a very particular manner: where false beliefs about brute facts deal with the existence of the fact, false beliefs about institutional facts deal with the extension of the fact. Once the difference between both kinds of false beliefs has been discussed and defended, this chapter will apply the ECCR to false beliefs about institutional facts. The first conclusion, as in the case of false beliefs about brute facts, is that criminal responsibility is directly credited when the citizen is aware of the criminality of his action. But the ECCR also provides a deontic solution when the citizen is not cognisant that his action is criminal: he will be responsible if he is culpable for his ignorance.
The rest of the chapter will apply the three momentums already presented in the ECCR to false beliefs about institutional facts. According to the first, the citizen will be culpable of his ignorance when his latent knowledge about the extension of an institutional fact triggered a doubt or suspicion that his action could be illegal but he did not abort his action. Three situations, however, can aggravate or alleviate the lack
of suspicion that the action could be criminal: a) when the facts of the case are legally intricate; b) when the state does not discharge its burden to make the description of a criminal offence plainly accessible to citizens; and c) those cases where the state creates or modifies offences previously contemplated as standard without making citizens sufficiently aware of the change. In the second stage of the ECCR, it will be defended that some normative corrector element needs to be brought about to protect institutional user’s expectations. Accordingly, criminal responsibility would be attributed to the institutional user if the standard of demands according with his status or role has not been fulfilled. When a particular institutional fact is present in potentially illegal conduct and it does not trigger doubts or suspicions about its legality, criminal responsibility will be attributed if the citizen’s behaviour fell short of his expected standard as a status holder. Later in the chapter, a dual normative corrector approach will be introduced: for offences of disassociation the appraisal will be based on the collateral institutional user test, whereas for offences of association a test in line with a version of the Bolam test509 will be utilised. Both judgements encompass the minimum updatable knowledge required to interact legitimately in the institutional framework. Finally, the third ECCR step evaluates the intellectual or physical capacity of the citizen at the moment of action to determine whether or not they have altered his perception process, affecting his judgement about the need to search for additional information.