Connecting Offence and Defence - David Prendergast

The Criminal Law Discussion Group is happy to announce our final event in our 2019 Open Seminar Series. This week we will be hosting David Prendergast (Trinity College Dublin) who will be presenting a paper entitled Connecting Offence and Defence. The event is not pre-read but if you would like a copy of David’s paper please email us on crimlawdg@ed.ac.uk and we’ll be happy to send you one.

As always, tea/coffee and biscuits will be served!

Abstract
The latest version of the diminished responsibility defence in England and Wales brings to the fore a previously underappreciated aspect of excusatory defences (broadly conceived). This aspect is the connection between the qualifying conditions for the defence and the causal story of the carrying out of the offence.
The new statutory provisions on diminished responsibility require a causal link between the defendant’s mental disorder and killing for which they offer it as a (partial) defence: The defendant’s ‘suffering from an abnormality of mental functioning’ must ‘provide[ ] an explanation for [his or her] acts and omissions in doing or being a party to the killing’. The statute further clarifies that ‘an abnormality of mental functioning provides an explanation for [the defendant’s] conduct if it causes, or is a significant contributory factor in causing, [the defendant] to carry out that conduct’. Call this the causation approach to connecting offence and defence.
A rival approach – call it the contemporaneity approach – arguably found expression in the old diminished responsibility defence and clearly held for infanticide, characterised as a defence. Infanticide occurs where a woman kills her child within 12 months of giving birth and ‘at the time’ of the killing ‘the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of [a mental disorder] consequent upon the birth of the child’. For infanticide, the mere coincidence in time, rather than a causal connection, between a post-natal condition and the killing, is required.
My paper provides a brief analytical survey of the connection of various defences’ qualifying conditions to offence commission. This survey is used add gloss on the familiar justification-excuse categorisation of criminal defences and I also use it to challenge the so-called common architecture thesis that the structure of criminal responsibility ought to track or match, best it can, that of moral responsibility. My paper’s argument is that criminal law, via defences as elsewhere, draws lines where morality would not (as Maris Köpcke puts it), and that this is not just because of considerations of practical implementation and workability, but can be for principled reasons of legality and authority.

About the speaker
David Prendergast is an Assistant Professor at the School of Law, Trinity College Dublin, teaching and supervising in the areas of Jurisprudence and Criminal Law. David’s main research interests concern theorising substantive criminal law and he has recent and forthcoming publications in the German Law Journal, Criminal Law and Philosophy, and the Irish Jurist, among others. David has presented papers recently at University of Oxford (a symposium on David Brink’s forthcoming book on moral and criminal responsibility), University of Limerick (constitutional law conference), and to the Irish Jurisprudence Society (a workshop paper on recklessness). David is a former co-editor of the Dublin University Law Journal and recipient of a Provost’s teaching award at Trinity.