U. Toronto Law Working Paper Series No

Transcription

1 U. Toronto Law Working Paper Series No Acts and actus reus Vincent Chiao January 21, 2014

2 Acts and actus reus Vincent Chiao 1 University of Toronto, Faculty of Law It is common ground among criminal lawyers in common law jurisdictions that the concept of actus reus refers to a basic and essential component of criminal liability. There are two points at which actus reus plays a central role: first, as a necessary component of any valid crime definition; and, second, as one or more propositions that must be proven, usually by the prosecution, before an accused may be convicted. Beyond these general points, the content and role of actus reus has been the subject of significant controversy in recent decades. What has proven to be most controversial is the suggestion that a substantive concept of actus reus can be pressed into service to restrict or otherwise qualify the scope of criminal liability. Proposals in the literature include the suggestion that the concept of actus reus can be used to restrict liability to volitional bodily movements, to conduct or outcomes over which a person has control, or to conduct that reflects her choices. However, while courts have, in very exceptional circumstances, permitted defendants to raise novel actus reus based defenses, such as automatism and extreme intoxication, they have by and large not clearly adopted any of these more capacious understandings of actus reus. In this chapter, I shall consider a range of recent scholarly interpretations of actus reus, and consider the degree to which any of them finds support in the case law, with particular reference to the Canadian and, to a lesser extent, American jurisprudence. 2 At one end of the spectrum, the minimal interpretation treats actus reus simply as referring to whatever it is the legislature has decided to criminalize, with the courts limited to adjudicating whether the prosecution has, in any given case, proven the specified actus reus to the requisite standard. At the other end of the spectrum, the maximal interpretation conceives of actus reus as restricting criminal liability to positive acts, where that is understood in terms of willed bodily movements. Between these two extremes lie a number of views, each of which tries to provide a slightly different gloss on what proof of actus reus does (or should) require, with the details left fairly open- ended and unspecified. I start by briefly discussing what I take to be common ground among the various approaches to actus reus in the literature. I then move on, in sections 2 and 3, to consider the minimal and maximal conceptions of actus reus, respectively. In section 4, I consider a range of intermediate positions, in particular, approaches that interpret actus reus in terms of control or practical agency, whether as a strict requirement or as a looser presumption. The relatively sparse case law on the subject is not sufficient to uniquely support or falsify any of these views. I conclude in section 5 with a brief discussion of why this might be. 1 This project was greatly facilitated by Spencer Robinson, who provided invaluable research assistance. Funding for this project was provided by the Foundation for Legal Research, for which I am extremely grateful. 2 Because criminal law in the United States is a state rather than federal subject, my discussion of the American jurisprudence is much less comprehensive than my discussion of the Canadian jurisprudence. 1

3 I. A common method for individuating crimes is on the basis of their constituent elements. An element of an offense is a predicate referring to a proposition whose truth (with some exceptions) the prosecution bears the burden of proving beyond a reasonable doubt; if the prosecution is able to prove that all the propositions referred to in a crime definition are true of a given individual, it is entitled to a conviction against that person. The common law tradition distinguishes between two types of offense elements: actus reus elements and mens rea elements the wrongful act and the guilty mind. Actus reus elements typically describe an event either in terms of its consequences (a death, an injury, transference of property, release of pollutants) or in terms of a person s conduct (sexual touching, misrepresentation of a material fact, driving). Mens rea elements describe a particular type of relationship between the accused and the specified actus reus, typically though not invariably in terms of the accused s mental state, e.g. that the accused brought it about deliberately, or with reckless indifference. Mens rea elements thus modify actus reus elements: for every actus reus element in a crime definition, it is possible to have one or more mens rea elements that apply to it, thereby restricting the class of events that will satisfy the crime definition. Sometimes a crime definition also includes circumstantial facts such as the age or status of the victim (or the accused), the value of the property in question, etc.; these circumstantial facts are classified as actus reus elements, and may themselves have mens rea elements associated with them, for instance, requiring not just that the victim fit a certain description, but also that the accused knew that to be the case at the time he acted. Every crime is thus built around proof of some actus reus element or elements. Most crimes also include mens rea elements, either explicitly or by judicial presumption. Common law courts tend to presume that criminal statutes that do not explicitly refer to mens rea nevertheless do so implicitly. 3 However, there is no strict common law rule that requires mens rea. Legislatures are free to define crimes without any mens rea whatsoever; in Canada, these are referred to as absolute liability offenses. In some cases it can be difficult to determine whether to classify an element as an actus reus or mens rea term. For instance, a person commits assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly. 4 Suppose A pushes B into C. B clearly has not assaulted C, but is this due to failure of mens rea he applies force to C, but not intentionally? Or is this due to failure of actus reus whatever his intention, he does not apply force? The source of the difficulty in classifying elements neatly into actus reus and mens rea is that whether B applies force to C may seem to rest on its own quasi- mens rea analysis, e.g., whether the bodily contact between B and C was truly B s doing. Practically speaking, the significance of classifying an element as an actus reus rather than a mens rea element is that if it is actus reus, the prosecution will still be required to prove it even with respect to strict or absolute liability offenses even, for instance, if Parliament decided to strike the word intentionally from the definition of 3 See e.g. R v Sault Ste Marie (City), [1978] 2 SCR 1299 at paras 60-61, 40 CCC (2d) Criminal Code, RSC 1985, c C- 46 s 265(1)(a). 2

4 assault and the defense will still be entitled to challenge the prosecution s proof on those points. All of this I take to be common ground. In the remainder of this chapter, I shall consider a variety of interpretations of actus reus, and the support those interpretations find in the Canadian and American precedents. Before proceeding, however, I pause to make a few preliminary observations. First, as a practical matter, to the best of my knowledge it has never been the case that the prosecution has been required to prove as a matter of course either that the accused s conduct was voluntary or that it was (or included ) an act. At most, the prosecution might bear the burden of dispelling any reasonable doubt once the accused has successfully raised the issue, and otherwise be entitled to a default presumption of voluntariness. 5 Indeed, depending on the kind of claim that is raised, that burden may well remain with the accused. 6 Second, despite the fact that the first substantive provision in the Model Penal Code states that [a] person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable, it is not clear that there is much historical support for a voluntary act requirement as a principled requirement on criminal liability. 7 Although Blackstone did state that an overt act was required for criminal liability, he also, at the very outset of his volume on criminal law, asserted that a crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it, suggesting that he did not view failures to act as non- actionable in the criminal law. 8 Strikingly, Blackstone s discussion occurs almost in passing, in the context of a chapter that is instead devoted to a variety of defects of the will as potential defenses to liability. There, Blackstone argued that though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment. 9 It is because it is not given to us to know what goes on in the minds of others that the law refrains from punishing people unless they make their intentions visible through overt actions or through some other open evidence of their inner lives. Presumably, should such evidence be available in particular cases, or because of developments in our ability (or confidence in our ability) to discern a person s plans, there would be no objection to punishing that person by Blackstone s lights. Thus, while Blackstone does allude to the 5 Bratty, supra note 6 at 413; R v Stone, [1999] 2 SCR 290 at para 179, 173 DLR (4th) 66 [Stone]. 6 R v Daviault, [1994] 3 SCR 3 at paras 63-65, 93 CCC (3d) 21 [Daviault]; Stone, supra note 6 at para Model Penal Code 2.01(1). See also Bratty v. Attorney- General for Northern Ireland [1963] AC 386, Sir William Blackstone, Commentaries on the Laws of England ( ), vol. 4, 21. (Emphasis modified.) 9 Ibid. 3

5 necessity for an overt act, his real object of interest in this chapter lies elsewhere, with the proposition that an unwarrantable act without a vitious will is no crime at all. 10 Consistent with this focus on inner psychological states, Blackstone expressly rejects what we would today describe as crimes of negligence or objective fault, claiming that should a person who is otherwise acting lawfully cause any accidental mischief, he stands excused from all guilt. 11 The rejection of objective fault offenses is unsurprising given Blackstone s concern, expressed in the passage just quoted, that criminal punishment should primarily rest on a person s culpability as determined in foro conscientiae and revealed through public acts. However, once Blackstone s reticence toward negligence liability has been set aside as it has been in most, perhaps all, common law jurisdictions then the rationale for insisting on overt acts in those cases will also fall by the wayside. For if the only reason for insisting on overt acts is as evidence of psychological states, and if, in cases of objective fault, we are not punishing people for their heinous psychological states, then it follows that for objective fault offenses there is no reason to require an overt act. With this caveat about the tendency in the literature to run together an analysis of actus reus with the issue as to whether there is, or should be, a voluntary act requirement, I now turn to consider a range of actual and potential interpretations of actus reus. II. I start by considering the minimal conception of actus reus. While no one, to my knowledge, has defended this view of actus reus, it is worth briefly considering the minimal conception because it marks a natural endpoint to the spectrum of views that people have defended, and because the doctrinal reasons for its inadequacy will be illustrative for that further discussion. According to this interpretation, every crime definition must identify some target of criminal sanctions; actus reus simply refers to that target, whatever it is. Actus reus elements are thus more basic to a crime definition than mens rea elements in the sense that it is possible, both legally and in principle, to have a crime definition with no mens rea whatsoever, but it is not possible, on purely conceptual grounds, to define a crime without specifying an actus reus. The necessity for actus reus simply reflects the trivial observation that a purported definition of anything must at least purport to be a definition of something. The basic problem with a minimal conception of actus reus is that courts have consistently acknowledged the existence of a number of legal rules restricting liability in the name of actus reus, suggesting that the concept is not purely formal. Two prominent examples are automatism and extreme intoxication. (Something roughly analogous appears to be occurring in the Canadian law of duress as well, under the heading of moral involuntariness. ) If properly raised, both automatism and extreme intoxication permit the trial judge or jury to acquit the accused even when it is not contested that the accused in fact caused the specified harm. This is because a person in either of these conditions does 10 Ibid. Blackstone adds, So that to constitute a crime against human laws, there must be, first, a vitious will; and, secondly, an unlawful act consequent upon such vitious will. 11 Ibid,

6 not act voluntarily; and this lack of voluntariness coupled with a healthy dose of confidence that the bout that brought on the episode will not recur is sufficient to defeat the prosecution s proof of actus reus. This would be an odd result if actus reus were purely formal, for then proof of causation of the prohibited harm should be the end of the story. To say that the courts have acknowledged the existence of such doctrines is not to say that the courts apply them with any regularity. Automatism as a distinct defense from insanity was formally recognized in Canada in 1964, in R. v. Bleta, a case involving a fight in which the accused, after hitting his head on the pavement, got up and stabbed the victim in what the accused later claimed was an automatistic state. 12 Since Bleta, the provincial courts of appeal in Canada have only heard 27 further cases, or about one appeal every two years. Perhaps unsurprisingly, these types of claims do not succeed very often on appeal. Out of the 28 appeals in Canadian courts in which automatism was argued as a ground of appeal, only 4 were resolved favorably for the accused. 13 Non- mental disorder automatism fares somewhat better at trial; out of the 73 reported trials since Bleta in which the defense was raised, the accused prevailed 28 times, or in slightly more than one third of the cases. Most of the non- mental disorder automatism appeals (21) are rejected either because the accused failed to provide sufficient medical evidence of automatism to shift the burden of proof back onto the prosecution, or because the court viewed the cause of the episode as rooted in a disease of the mind, and hence not non- mental disorder. The etiology is important because if a disease of the mind caused the alleged episode, the accused is not entitled to a simple acquittal but is rather remanded into the custody of the mental health system, where he will remain until the review boards determine he no longer poses a danger to public safety. Unsurprisingly, the decision whether to classify a given episode as resulting from a disease of the mind is not a purely medical question, and is strongly flavored by public safety concerns. Thus, in R. v. Stone, the Supreme Court s most recent examination of the non- mental disorder automatism defense, the Court cited concerns with dissimulation and floodgates to justify imposing on the accused not only a significant evidentiary burden, but also the burden of proving the defense by a balance of probabilities. 14 Additionally, the Court advised trial courts to start with the presumption that the accused s alleged automatism was the result of a disease of the mind, and to reverse that presumption only in rare cases. 15 The extreme intoxication defense is even more limited. Of the nine times that this defense has been considered on appeal, it has succeeded in only one instance, namely the case in which it was officially recognized. A search of the reported trial decisions in Canada has located precisely four instances in which the extreme intoxication defense succeeded, 12 Bleta v R, [1964] SCR 561, 48 DLR (2d) 139 [Bleta]. The Saskatchewan Court of Appeal seems to have been the first provincial court of appeal to recognize the defence; see R v Minor (1955), 112 CCC 29 at para 13, 21 CR Bleta, supra note 13; R. v. Haslam (1990), 56 CCC (3d) 491, 78 CR (3d) 23, (BCCA); R v Parks, [1992] 2 SCR 871, 95 DLR (4th) 27; R v Jiang, 2007 BCCA 270, 220 CCC (3d) Stone, supra note 7 at paras Ibid. at para

7 out of 36 reported cases. 16 In the landmark case R. v. Daviault, the Supreme Court of Canada recognized that extreme intoxication could call into question whether the accused had the minimum intent to commit the act constituting the actus reus as well as whether the accused s conduct was sufficiently voluntary. 17 Reflecting the rather confused state of the jurisprudence, the majority in Daviault characterized extreme intoxication as referring to a person so drunk that he is an automaton, and as such, someone who may be capable of voluntary acts such as moving his arms and legs but is quite incapable of forming the most basic or simple intent required to perform the act required by a general intent offense. 18 Despite this characterization of the defense in Daviault as pertaining to intent rather than voluntariness, the better view and one that the Daviault court accepted, albeit in dicta is that insofar as extreme intoxication places the accused in a state akin to automatism, it is a challenge to voluntariness, and hence a challenge to actus reus, not mens rea. 19 This interpretation of Daviault has the benefit of being consistent with the Supreme Court s characterization of automatism as bearing on the voluntariness of the accused s conduct, and hence as falling under the actus reus rubric. The point is in any case largely moot, as Parliament effectively overruled Daviault in virtually all serious cases by prohibiting the use of self- induced intoxication to call into question the general intent or the voluntariness required to commit the offense. 20 Given that Daviault was decided under section 7 of the Canadian Charter of Rights and Freedoms, there is a fairly straightforward argument that this legislation is unconstitutional on its face, but the Supreme Court has so far not had to face this question. As it is not possible in a project of this scale to adequately survey the state of the law in all fifty- one American jurisdictions, I shall instead briefly compare the situation in a jurisdiction of a comparable population, namely the state of California. In California, the courts appear to have taken a functionally similar, if doctrinally somewhat distinct, approach. Rather than two distinct defenses of extreme intoxication and automatism, the California courts consider a general defense of unconsciousness. In contrast to the Canadian approach, the Supreme Court of California has adopted a significantly more lenient standard in permitting the defense to go to the jury on even fairly dubious evidence of unconsciousness. 21 On the other hand, a defendant who renders himself unconscious 16 R v McIntyre (1992), 100 Nfld & PEIR 144, 17 WCB (2d) 5, (PEI TD); R v Misquadis (1995), 39 CR (4th) 246, 27 WCB (2d) 4, (Ont CJ (Gen Div)); R v McShane, [1996] OJ No 361 (QL), (Ont CJ (Prov Div)); R v Brenton (1999), 180 DLR (4th) 314, 28 CR (5th) 308, (NTSC) (reversed on appeal). However, coverage of trials on the online databases is quite spotty, so this figure should not be taken to be authoritative. 17Daviault, supra note Ibid. at para Ibid. at para Criminal Code, RSC 1985, c C- 46 s People v. Wilson, 427 P.2d 820 (Cal. 1967) (holding that failure to instruct jury on unconsciousness was reversible error, no matter how incredible the testimony of a defendant ); People v. Mathson, 210 Cal. App. 4 th 1297, 149 Cal. Rptr. 3d. 167 (Cal. 2012); see also People v. Hardy, 198 P.2d 865 (1948 Cal. Sup. Ct.) (reversing trial court instruction that if evidence shows defendant acted as if she were conscious, the law presumes she was conscious unless the presumption is 6

8 through voluntary intoxication is not entitled to a defense against a general intent offense. The position taken in California thus closely parallels the position in Canada, in that although intoxication is understood as a possible basis for negating the voluntariness of an act, the availability of this defense is sharply limited by statute to a small class of offenses. 22 More generally, neither the Supreme Court of Canada nor the Supreme Court of California have been entirely consistent in their understanding of whether to these types of claims should be construed as pertaining to mens rea, actus reus or an affirmative defense. 23 For instance, in People v. Babbitt, the Supreme Court of California held that although unconsciousness was a complete defense to murder if involuntarily induced, and that it negated the elements of voluntariness and intent, this did not transform the absence of the defense consciousness into an element that the prosecution was required to prove. 24 The worry, presumably, is that a contrary conclusion would impose an unmanageable burden on the prosecution in a very large number of cases. If the small number of reported cases is any indication, the automatism and extreme intoxication doctrines are of marginal practical importance. 25 In addition, the status of these doctrines is a bit of a puzzle in the common law. On the one hand, if voluntariness were truly an implied part of the actus reus of every offense, the burden of proof would be on the prosecution to establish it in each case. But not only does the prosecution not bear this burden unless the accused raises it, in Canada the accused faces a substantial evidentiary hurdle before the court will consider it adequately raised; and even then, the burden of proof (to a balance of probabilities) remains with the defense. 26 This rule appears to be rather more relaxed in at least some American jurisdictions, in which the onus on the defense is merely to raise a reasonable doubt, though it is again not clear how important this is in light of the paucity of reported cases. This suggests that automatism and extreme intoxication are more akin to affirmative defenses, such as duress or self- defense, than to attacks on the prosecution s case- in- chief. Nonetheless, courts have consistently classified the accused s evidence of lack of voluntariness as undermining proof of the actus reus of the offense. 27 overcome by a preponderance of the evidence); rev d on other grounds in People v. Ray, 533 P.2d 1017 (1975). 22 See Cal. Penal Code, Part I, Title I, Thus, in R v Chaulk, [1990] 3 S.C.R at para 26, 62 C.C.C. (3d) 193, the Supreme Court of Canada considered insanity as an actus reus defence, a mens rea defence, and, for good measure, as an excuse as well. 24 People v. Babbitt, 755 P.2d 253, 271 (Cal. 1988). 25 Of course, it is possible that these doctrines exert more substantial influence in plea negotiations. Intuitively, this seems unlikely given the heavy evidentiary and legal requirements that the Supreme Court has placed on these doctrines. 26 See Daviault, supra note 7 at para 67; Stone, supra note 7 at para 179. In Bratty (n. 6), 403ff. the House of Lords kept the burden on the prosecution, but imposed a fairly onerous evidentiary hurdle before the presumption of voluntariness would be displaced. 27 I thank Martha Shaffer for discussion of this point. 7

9 In any case, the point is that the continued existence of these doctrines suggests that common law courts have not adopted a minimal conception of actus reus. These doctrines reveal that, at least in truly exceptional circumstances, courts are willing to screen out defendants on actus reus grounds, even when the alleged defect in actus reus is not expressly recognized in either the crime definition or in a statutory defense. This suggests that the courts have not limited themselves to a purely minimal conception of actus reus, although in practice they have come extremely close to doing so. III. In contrast to a minimal conception of actus reus, Michael Moore defends a robust, maximal conception, according to which actus reus should be understood fairly literally to require that every crime definition, and every prosecution, must refer, directly or indirectly, to a wrongful act by the accused. 28 This, of course, requires a theory of human action, which Moore provides in great detail. Without attempting to sketch the full contours of Moore s view, the basic picture for Moore is that an act is a willed bodily movement, and that, subject to a few exceptions, the only thing that people ought to be criminally punished for are their wrongful acts. Although this type of maximalist view occupies the opposite end of the spectrum from the minimalist conception just considered, it faces a similar doctrinal difficulty in that there are many well- recognized crimes that can be completed without any relevant bodily movement, as well as crimes for which bodily movements serve, as Blackstone suggested, merely to corroborate the accused s criminal intentions, which constitute the primary targets of liability. Preparatory attempts are instances of the latter, insofar as the significance of proving overt acts is simply to substantiate the sincerity of the alleged criminal plan. 29 Conspiracy sometimes requires proof of an overt act, and sometimes does not; in Canada, for instance, no overt act is required, only a genuine agreement. 30 As for the former, the common law tradition has long recognized special duties of care for people in particular relationships, such as husband- wife, parent- child, property owner- guest. 31 Courts have also been willing, in egregious cases, to recognize novel duties to act even when not explicitly contemplated by statute. For instance, in Commonwealth v. Levesque, 28 Michael Moore, Act and Crime: the Philosophy of Action and Its Implications for Criminal Law (1993). 29 See Model Penal Code 5.01; R v Sorrell and Bondett (1978), 41 CCC (2d) A commonly used conspiracy statute in American federal law, 18 U.S.C. 371, requires proof of any act in furtherance of the conspiracy. However, the Model Penal Code only requires overt acts for less serious conspiracies; see MPC 5.03(5). For Canadian precedents, see R v O Brien, [1954] SCR 666, [1955] 2 DLR 311; R v Cotroni, [1979] 2 SCR 256, 93 DLR (3d) 161; United States v Dynar, [1997] 2 SCR 462, 33 OR (3d) R v Yuman (1910), 17 CCC 474, 22 OLR 500, (Ont CA) (spousal support); R v Naglik, [1993] 3 SCR 122, 105 DLR (4th) 712 (child under care of parent); R v Peterson, 201 CCC (3d) 220, 34 CR (6th) 120, (Ont CA) (parent under care of adult child); R v Halmo [1941] OR 99, [1951] 3 DLR 6, (Ont CA) (principal s duty to control agent); R v Kulbacki (1966) 52 DLR (2d) 283, [1966] 1 CCC 167, (Man CA) (car owner s duty to control guest driver). 8

10 Massachusetts Supreme Judicial Court imposed a duty to report an uncontrolled fire upon those who started it, such that failure to discharge that duty was sufficient to support a manslaughter conviction when several firefighters died in the ensuing blaze. 32 Regulatory offenses also impose positive duties on people to act in certain ways. In R. v. Swaby, the Ontario Court of Appeal considered s. 91(3) of the Criminal Code, which penalized being an occupant of a motor vehicle that one knows to contain an unauthorized weapon. 33 Swaby claimed that the trial judge erred in not instructing the jury that he could not be convicted under the statute unless he had a reasonable opportunity to extract himself from the vehicle upon learning of the presence of the gun. The court accepted Swaby s contention on the grounds that [v]oluntary conduct is a necessary element for criminal liability, and that penalizing someone for being in the presence of an unauthorized weapon when he did not have a reasonable opportunity to distance himself from it would penalize involuntary conduct. 34 The point here is that even in a case where the court went out of its way to read in an implicit voluntary conduct requirement one that it acknowledged had no basis in statute it did not insist that the conduct take the form of positive acts. Failure to act in the face of a reasonable opportunity to do so would be sufficient. 35 Moore s account of the act requirement draws inspiration from John Austin s account of theory of action in the Lectures on Jurisprudence. 36 In his Lectures, Austin developed a relatively detailed account of human action, according to which actions are defined by their causal histories: they are bodily movements caused by volitions. Volitions, in turn, are wishes or desires that have the characteristic that the desired outcome the bodily movement follows invariably and immediately upon their formation. 37 Actions are thus willed bodily movements; everything else everything beyond the skin, as it were is the consequence of an act, not an act itself. So- and- so closes the door is thus by Austin s lights not a good description of what an agent does; a more adequate description would be that the agent, with the intention of causing the door to be closed, moves her fingers and leans her body in such a way that the door closes N.E.2d 50 (Mass. 2002). In Canada, see R v Akrofi (1997), 113 CCC (3d) 201, 99 OAC 306, (Ont CA) (duty of pawnbrokers to cooperate with police); R v Moore, [1979] 1 SCR 195, 90 DLR (3d) 112 (duty to identify oneself to the police); R v Thornton (1991), 1 OR (3d) 480, 82 CCC (3d) 530, (Ont CA) (duty of HIV+ individual not to donate blood). 33 (2001), 54 OR (3d) 577, 155 CCC (3d) 235, (Ont CA). Although Swaby was prosecuted under s. 91(3), it had been replaced by section 94 at the time of the appeal. Unlike section 91(3), the new section 94(3) explicitly created a defense if the occupant on becoming aware of the presence of the firearm attempted to leave the motor vehicle or actually left the motor vehicle. 34 Ibid. at paras For Moore s response to these issues, see Moore (note 12), ch Ibid., 165 ( if we allow Austin the most plausible interpretation of the nature of volitions in the dimensions I have examined, his volitional theory is our current best bet about the nature of action. ) 37 John Austin, Lectures on Jurisprudence, or, The Philosophy of Positive Law (1966), Ibid.,

11 However, Austin does not actually subscribe to Moore s view that only willed bodily movements are punishable in the criminal law; indeed, in this part of his lectures, Austin does not consistently distinguish between civil and criminal liability. Austin is quite explicit in acknowledging that forbearances deliberate failures to act can ground liability, and indeed sometimes appears to consider merely negligent omissions to also be sufficient. 39 Austin s discussion of attempts makes clear that he views the need to prove overt acts as a safeguard against defective confessions, rather than as the basis for liability itself. 40 Indeed, while acknowledging that he was unaware of any legal system that did so, Austin was explicit in considering that a present intention to act or forbear in the future might well be punishable in principle. 41 What Austin does view as necessary to establishing an injury or wrong is that the agent forbears or acts with an intention adverse to his duty, or else he omits or acts negligently, heedlessly, or rashly. 42 The reason that intention or unlawful inadvertence is required is tied back to Austin s account of how sanctions, and hence legal obligations, work: unless the party knew that he was violating his duty, or unless he might have known that he was violating his duty, the sanction could not operate, at the moment of the wrong, to the end of impelling him to the act which the Law enjoins, or of deterring him from the act which the Law forbids. 43 Where willed bodily movement enters the picture is by describing how, in extremely general terms, subjects are able to discharge their legal duties, namely through the volitional control they exercise over the movements of their bodies. It is (a) people s desire to avoid sanctions, coupled with (b) their ability to do so by controlling their bodily movements, that (c) makes it possible for the law to guide action by creating legal obligations through the threat of sanctions. On this view, what matters is not that there is willed bodily movement per se, but rather that people are in a position to comply with the law s demands by controlling their bodies, whether through action or forbearance. Austin s focus on the voluntariness of human actions is, in other words, grounded in his desire to present a theory of law s role in guiding conduct, not in a theory about the necessary prerequisites for a criminal conviction. Of course, the law could well have its own reasons for calling something an act regardless of whether it would seem natural, or philosophically circumspect, to do so outside of legal contexts. But I doubt in any case that we are actually compelled to concede that, as Moore s view would suggest, when a person is acquitted of a charge on grounds of automatism, extreme intoxication and so forth, it is because he has not acted at all. 44 As 39 Austin (n. 37) 377, 474, 476, Ibid., Ibid., Ibid., Ibid., Moore (n. 28)

12 Bernard Williams has pointed out, it is often hard to deny that a sleepwalker or otherwise unconscious individual is acting, and indeed, in some cases, acting intentionally. 45 This point was graphically illustrated in the Daley case, in which the accused, after ingesting an estimated drinks in the course of one evening (one estimate put the figure at 49 ounces of whiskey), drove a motorcycle around Winnipeg looking for another party; later returned home and conversed briefly with another friend; woke a new neighbor to welcome him to the neighborhood; woke his wife to let him back in his home; and finally, once he gained entry, stabbed her to death before passing out, all while allegedly in a state of extreme intoxication amounting to automatism. 46 It is natural to describe such conduct as involving action because the conduct is intelligibly goal- directed he is trying to open the door, looking for a party, backing the motorcycle out of the driveway, and so forth. The defect is not that these are mere bodily movements highly choreographed seizures, as it were it is that, if the defendant is to be believed, the goals at which they are directed are not the his goals. 47 It is therefore not at all clear that we should assimilate conduct that so strongly supports a complex, purposive interpretation to conduct that is akin to tripping and falling down a flight of stairs. IV. I have considered minimalist and maximalist interpretations of actus reus, and argued that both are inconsistent with well- established features of the criminal law. The minimalist interpretation has trouble accommodating the existence of common law doctrines that impose additional voluntariness based constraints on criminal liability, whereas the maximalist interpretation has trouble accommodating offenses that target deliberate or negligent omissions, possession offenses, and crimes that are directed at attitudes rather than overt acts as such. I now turn to a family of intermediate views. These interpretations of actus reus are neither so minimal as to preclude any judicial oversight of criminal prosecutions on grounds of voluntariness, nor so maximal as to impose sweeping restrictions on existing patterns of criminalization. The two positions I shall consider are Doug Husak s suggestion that the common law conception of actus reus be understood in terms of a person s control over the prohibited outcome or conduct, and Antony Duff s suggestion that it be understood to reflect the person s practical reasoning. I treat Husak and Duff s positions together because the differences between them are, at least for strictly legal purposes, predominantly differences in emphasis. Duff emphasizes the connection between (punishable) conduct and conscious plans of action, whereas Husak emphasizes the connection to lack of conscious control. 45 Bernard Williams, Voluntary Acts and Responsible Agents, (1990) 10 Oxford J Legal Stud 1 ff., 1-10; Bernard Williams, The Actus Reus of Dr. Caligari, (1994) 142:5 U Pa L Rev 1661ff. Glanville Williams makes a similar observation. See Williams (n. 22) 8, 12. But see Jeffrie G Murphy, Involuntary Acts and Criminal Liability, (1971) 81:4 Ethics 332ff. 46 R v Daley, 2007 SCC 53 at paras 5-11, [2007] 3 SCR See Vincent Chiao, Action and Agency in the Criminal Law, (2009) 15 Legal Theory 1ff. 11

13 Historically speaking, both Husak and Duff s views draw on themes first articulated in H.L.A. Hart s paper, Acts of Will and Responsibility, in which Hart argued that cases of sleepwalking, epilepsy, reflex actions and so forth cases traditionally described as evincing a defect of the will or involuntary were better described as cases of bodily movements not subordinated to the agent s conscious plans of action, or, in other words, as movements that do not occur as part of anything the agent takes himself to be doing. 48 In the case of involuntary omissions, it is the person s inability to act that explains, Hart suggested, our sense that there is a fundamental defect in the person s conduct. In either case, the defect is a man s lack of conscious control over his muscular movements either the person was not conscious, or was conscious but was for some reason not in a position to control the movements (or lack of movement) of his body. 49 Duff argues that the common law concept of actus reus ought to be seen as grounded in our capacity to engage in practical reasoning and to actualise its results in ways that make a difference to the world in which we live. 50 For Duff, the role of actus reus is to draw a connection between a person s reasons for acting and the conduct or consequences for which she is being held accountable. Typically, to be sure, actualizing one s practical reasoning one s decision to do such- and- such, for instance involves moving one s body, but this is not invariably so. A parent who deliberately withholds the necessaries of life from his child may not act, in the sense of performing a relevant willed bodily movement, but nevertheless is engaged in culpable action, in the sense of translating his practical reasoning into real- world outcomes. For Duff, what is essential to agency, and hence to actus reus, is an individual s ability to put his or her intentions into effect in ways that make a difference to the social and material world. 51 More troublesome for Duff are cases of negligent omissions, e.g. cases in which a parent fails to provide the necessaries of life not out of a desire to harm the child, but out of a negligent failure to apprehend the true nature of the child s predicament. 52 In these kinds of cases, which Duff acknowledges are well- established and not controversial, criminal liability is imposed on a harm that does not reflect the accused s practical reasoning. 53 Thus, Duff ultimately concedes that there is not a strict action requirement in the criminal law, but rather a defeasible action presumption: typically, criminal liability is reserved for 48 Hart (n. 8) Ibid., R.A. Duff, Answering for Crime (2009), 100. See also R.A. Duff, Action, the Act Requirement and Criminal Liability in J. Hyman, H.C. Steward (eds.), Agency and Action (2004), 69ff. For a similar approach, see Vincent Chiao, Action and Agency in the Criminal Law, (2009) 15 Legal Theory 1ff. 51 Duff (n. 54) See R v Tutton, [1989] 1 SCR 1392, 48 CCC (3d) 129; State v. Williams, 484 P.2d 1167 (Wash. 1971). 53 While Duff s discussion focuses on negligent omissions, it is arguable that his account of actus reus creates a more systemic problem for negligence- based criminal liability generally, since the case in which a person negligently moves her body is not, for Duff, significantly different from the case in which she negligently fails to do so. 12

14 culpable exercises of agency, and in the exceptional cases in which it is not, the grading of the offense and the punishment handed down should generally be less. 54 Just as Austin s account of willed bodily movement was tied to his psychological account of legal obligation, Duff s account of actus reus is tied to his account of the criminal law as providing people with new reasons for action, or reinforcing the ones they already have. On this view of the criminal law, it is of course entirely natural to view the requirement that a crime definition specify an actus reus in terms of a requirement that those on whom liability is imposed were in a position to have taken these reasons into account in their practical reasoning. One may wonder whether criminal liability for conduct or consequences that the accused did not specifically intend or foresee is as exceptional as Duff seems to suppose. The threat of criminal sanctions plays a significant, and probably increasing, role in encouraging compliance with minimal standards of care. This role is particularly salient in activities where an agent s conduct may be expected to have a significant impact on the interests of others, regardless of the agent s reasons for that conduct, or even whether she had any reasons for it. In enforcing environmental regulations, for instance, it hardly matters what an individual company s reasons were for releasing pollutants, or even that the release was accidental and unforeseen; the failure to take adequate precautions is sufficient to ground liability. Indeed, in some cases the lack of due diligence may also not be necessary for liability, if it is seen as desirable to force market actors to internalize the costs of their conduct. Setting this issue aside, Duff s view faces another difficulty concerning the precise terms of the linkage between practical reasoning and conduct that is necessary for criminal liability. The suggestion that someone who commits an assault because he was physically pushed by someone else, or while in an automatistic state, or during a seizure, ought not be liable because the assault was not the result of his practical reasoning seems relatively unproblematic. But there are other ways in which a person s conduct can come apart from his practical reasoning, and it is not clear whether Duff s account of actus reus would preclude liability in these cases as well. In particular, I have in mind cases of akrasia, or weakness of will. The akratic agent acts in a way that contradicts his settled intention to do X, an intention that we can take to reflect his practical reasoning about what he has all- things- considered reason to do under the circumstances as he perceives them to be. In extreme cases, it may seem plausible to describe the akratic agent as taking an external point of view on his actions, observing the movement of his body (or its non- movement) as he would that of another. 55 Suppose that, despite A s considered judgment that shoplifting is morally wrong, and a firm intention not to shoplift, he cannot resist when he sees an opportunity to shoplift some new gadget and experiences a sudden, overpowering urge to take it. Does A have a valid actus reus defense that his theft was not the result of his practical reasoning? Naturally, practical problems of proof loom large, but let us simply stipulate to the accuracy of A s representation of his reasoning. The akratic agent s conduct, 54 Duff (n. 52) For discussion of these issues, see Gary Watson, Excusing Addiction, (1999) 18 Law and Phil 589ff.; R Jay Wallace, Addiction as Defect of the Will: Some Philosophical Reflections, (1999) 18 Law and Phil 621ff. 13

15 like that of the sleepwalking, unconscious or automatistic agent, does not reflect his practical reasoning, but it may also seem more blameworthy or deterrable than those more problematic instances as well. If indeed we do wish to hold the akratic agent liable while exculpating the others, then Duff s practical reasoning account will need to appeal to a more developed account of the requisite connection between practical reasoning and conduct to enable us to do so. One might suggest that the akratic agent, unlike the sleepwalking one, has a fair opportunity to comply with the law s demands. A person who assaults another while sleepwalking was probably not very well situated to prevent the assault, particularly if he has no prior history of such assaults. In contrast, even if the akratic agent s conduct does not reflect her judgment, he may still be able to prevent the theft, either by remonstrating with himself, or by gritting his teeth and forcing himself to put the gadget back on the shelf, or by asking someone else to prevent him from leaving the store with it. The line between akrasia and addiction, like the line between addiction and the more serious defects of will, is perhaps not amenable to precise specification, but I suspect that many would think that a line can be drawn somewhere between automatism and giving in to serious temptation. Husak s proposal that the courts endorse a control requirement is, in effect, a proposal for how to draw that line: persons are responsible and deserve punishment only for those states of affairs over which they have control. 56 Husak contrasts cases in which an accused has control over an outcome, even when he plausibly performs no action (as in pure omission- based liability), and cases in which an accused acts, but has no control over his acting, and suggests that liability would be appropriate in the former but not in the latter on grounds of control. Cases that are troublesome on both the minimal and maximal views cases involving people who commit crimes while sleepwalking, in a state of automatism, being attacked by a swarm of bees, and so forth are not troublesome on Husak s control requirement. Unlike the minimalist account, insofar as these individuals lack control over their conduct, it is appropriate for courts to prevent convictions on actus reus grounds; yet, unlike the maximalist account, Husak need not commit himself to implausibly denying that the accused in such cases are acting when they engage in their complex, goal- oriented behaviors. 57 Moreover, even if it is true that the accused in these cases did not, at the particular time of the offense, have direct control over their conduct, nevertheless they may still be liable if they had indirect control, i.e. if they engaged in the activity knowing that they might well come to be in a state where they are out of control, as would be the case, for instance, if someone, knowing that he is prone to seizures, sets out driving even though he has knowingly failed to take his anti- seizure medication. The control approach to actus reus need not go hunting around for a prior voluntary act which can then, in a somewhat mysterious way, be considered to be included in the involuntary conduct of running 56 Douglas Husak, The Alleged Act Requirement in the Criminal Law, in John Deigh, David Dolinko, (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011), 118ff. See also Husak, The Philosophy of Criminal Law (1987), ch. 4; Husak, Does Criminal Liability Require an Act?, reprinted in The Philosophy of Criminal Law: Selected Essays (2010), ch. 1; and Husak, Rethinking the Act Requirement, (2007) 28:6 Cardozo L Rev 2437ff. 57 Husak (n. 57)

16 someone over while having a seizure. 58 Finally, cases that are troublesome under Duff s action presumption are more easily accommodated under Husak s control requirement. For instance, in cases of negligent omissions, such as negligent failure to provide the necessaries of life, the control requirement would permit liability insofar as the victim s well- being was under the accused s control at the relevant times, even if the accused did not intend or foresee the harm to the victim from failing to act. Or would it? As with Duff s practical reasoning- based conception, one of the difficulties with Husak s control requirement is in fleshing out specifically what control consists in, and since control admits of degrees how much of it is required for liability. Husak acknowledges the need for further specification of the control requirement, but has not yet suggested how this specification might go. 59 One issue in particular that merits attention is the interaction between control and mens rea. Consider the following two possibilities. While it would not be implausible to say that A has control over Y if A is at liberty to do X, and if doing X determines whether or not Y occurs, this is a quite broad conception of control. A more narrow sense of control adds that A must be aware of the effect his choosing to do X is likely to have on Y in order to have control over Y. The narrow conception of control, in other words, adds an epistemic condition to the broad conception. Husak subscribes to the narrower conception, since he allows that, while people who commit crimes nonvoluntarily should not be punished insofar as they do not control their conduct, criminal liability would be appropriate [w]hen an agent performs a voluntary act, intending, knowing, or consciously disregarding the risk that it will cause her to perform a subsequent nonvoluntary criminal act. 60 The challenge for a narrow conception of control, at least as a matter of descriptive accuracy, is that it appears to preclude absolute criminal liability, since absolute criminal liability attaches even if you were unaware (even reasonably unaware) that your decision to do X would result in Y. Absolute liability in the criminal law is, of course, quite controversial, but its existence is hard to deny. Indeed, while it is hard to get an empirically informed grip on such matters, it appears to be the case that there are a great many absolute liability offenses, particularly in the regulatory arena. 61 Importing an epistemic component to control also casts doubt on the distinction between actus reus and mens rea, as whether liability is strict in the criminal law depends on mens rea, not actus reus. Thus, suppose that driving with a suspended license is an absolute liability offense, and that A is reasonably unaware that his license has in fact been suspended. The fact that A is unaware of this fact would seem to undermine the epistemic component to control he certainly has control vis- à- vis driving, but not vis- à- vis driving with a suspended license with the apparent consequence that A should have a valid actus 58 Ibid., 120. This is essentially what happened in People v. Decina (1956), 138 N.E.2d 799, 2 N.Y. (2d) 133; see also Hill v. Baxter, [1958] 1 QB 277, (1958) All ER 193, [1958] 2 WLR 76. A similar issue arises in the defenses of necessity. See R v Perka, [1984] 2 SCR 232 at paras 52-56, 13 DLR (4th) Husak (n. 57) Ibid., See Alan Michaels, Constitutional Innocence, (1999) 112 Harvard Law Review 828ff. 15

17 reus defense to liability. Of course, if A does have a valid actus reus defense on these facts, that is functionally equivalent to reading in a mens rea of negligence, i.e. to refusing to countenance absolute liability offenses. But courts do allow absolute liability offenses, although in post- Charter Canada, only for minor offenses that do not involve the threat of incarceration. 62 It might be argued that all the control that A needs for liability is control over whether or not he is driving, not whether he is driving with a suspended license, i.e. that it is enough if he is aware that he is driving, regardless of whether he also knows that his license has been suspended. This gives A narrow control over driving, and broad control over driving with a suspended license. The trouble with this proposal is that Husak suggests that whether you have control over some future event explains whether you are responsible for its occurrence, and it seems fairly clear that many future events over which we have control in the broad sense are not events for which we are responsible, since (among other things) we lack sufficiently robust information about the consequences of our actions. (Gavrilo Princip had control in the broad sense over the course of world history when he chose to assassinate Archduke Franz Ferdinand, but while he was surely responsible for the assassination and its foreseeable consequences, the bombing of Nagasaki, the fall of the Berlin Wall and the formation of the Euro zone surely cannot be laid at his doorstep, although each of these events can in some sense be traced back to World War I, which Princip s action precipitated.) Thus, if A only has broad control over driving with a suspended license, it is not clear why he would be responsible for that infraction. Yet if, in order for him to be responsible, he has to have narrow control over the full description of the relevant conduct ( full with reference to the crime definition), that will require showing subjective awareness of the material facts, in effect invalidating the absolute liability aspect of the offense only, somewhat perversely, on actus reus rather than mens rea grounds. 63 To be fair, the fuzziness of the border between mens rea and actus reus in these cases may simply reflect the limits of the concepts themselves, rather than any defect in Husak s analysis of them. In any case, that they bleed into one another at this point has been, as I noted earlier, recognized for quite some time. As Hart noted some time ago: If it is argued that this blurs the line between strict liability and negligence, and brings in the latter in a subjective form, I would admit the charge. But I would urge that we do not know how strict strict liability really is, or how absolute absolute prohibition really is, or how subjective negligence is, till we see what the courts do with these ideas in practice Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 SCR 486 at paras 73-76, 24 DLR (4th) 536. In R v Hill, [1975] 2 SCR 402, 43 DLR (3d) 532 the Supreme Court of Canada upheld the conviction of a motorist who, after her car came into contact with the vehicle in front of her, left the scene believing that no damage had occurred, when (so the court determined) it had in fact resulted in minor damage. Hill argued that her ignorance rendered her driving away from what the scene of an accident was involuntary and hence alleged a failure of actus reus. The majority rejected the argument, analogizing her ignorance of the damage to a driver who unwittingly exceeds the speed limit or inadvertently goes through a red light. Ibid. at para Murphy raised a similar objection to Hart s account; see Murphy (n. 46) 337. I suspect a very similar type of objection could be raised against Duff s position. 64 Hart (n. 8)

18 It may be that, over the intervening decades, the courts have turned out to be rather more accommodating of a truly strict strict liability than either Hart or Husak would prefer. V. I end my discussion with a cautionary note. While the academic debates surrounding the concept of actus reus have focused on the substantive criteria that different theories attempt to read into the concept, they have by and large not attended to broader questions about institutional competence. Yet these questions are unavoidable in this context. Actus reus is a common law concept, which means that it is a concept developed and applied by courts in adjudicating cases, and a concept that has effect independent of statutory law. Yet the definition of crimes is primarily in some jurisdictions, such as Canada, exclusively the job of the legislature. 65 Thus, adopting a more maximalist conception of actus reus is equivalent to giving courts an enhanced role under the common law to restrict or qualify statutory law. A relatively more minimal conception would, in contrast, allow legislatures greater leeway, with courts enforcing statutes more or less as written. It is thus important to bear in mind that the various interpretations of actus reus differ not only in terms of the content they suggest should be read into that concept, but also in terms of the degree to which they suggest that the judiciary should be able to second guess legislatures on the definition of crimes. I suggested that the minimalist view of actus reus conflicts with common law doctrines of automatism and extreme intoxication. However, I also noted that these doctrines are of limited significance in practice; the interest of criminal law theorists in these doctrines far outstrips their actual significance to the law. This suggests that the minimalist view is a very good guide to the practical significance of actus reus. In light of the relative paucity of judicial consideration of the issues that I have been considering, and the somewhat conflicting and undeveloped nature of the discussion that does exist, my suspicion is that as a matter of predicting outcomes, a minimalist interpretation of actus reus is likely to be at least as good, and indeed probably substantially better, than either of the intermediate positions. This is not because courts generally reject a control or practical agency based view of actus reus on the merits, but because developing a view on the merits is tantamount to asserting judicial power against legislative and prosecutorial prerogative. Perhaps the reason courts have not developed a fuller concept of actus reus is not because they lack a sufficiently robust philosophical or psychological theory, but rather because of concerns grounded in institutional competence and legitimacy. Obsessing about actus reus, in other words, may be out of place in a democratic, statute- driven criminal law. It does not follow from even an entirely minimalist view of actus reus that there are no objections to criminalizing omissions, thoughts, statuses, etc.. What follows is only that any such objections are grounded in political morality, not in a putative analysis of the legal concept of actus reus. Someone who defends a minimalist conception of actus reus is not, in virtue of that fact, committed to approving whatever pattern of criminalization a legislature settles on; the principle of judicial restraint should not be conflated with an anything- goes attitude toward criminalization. Rather, what she is committed to is only the view that 65 Frey v Fedoruk, [1950] SCR 517 at para 40, 97 CCC 1; Criminal Code, RSC 1985, c C- 46 s 9. 17

19 courts should not enforce their own conception of the limits of criminal liability against legislatures, at least absent some constitutional basis for doing so. Conversely, it is incumbent upon defenders of more robust conceptions of actus reus to explain in greater depth when and why it is appropriate for common law courts to assert control over legislators and prosecutors on these sorts of open- ended and contestable issues. 18

20 Selected bibliography Acts and Actus Reus 1. John Austin, Lectures On Jurisprudence, or, The Philosophy of Positive Law (4th edn, 1879), at Andrew Botterell, Understanding the Voluntary Act Principle, in François Tanguay- Renaud, James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (2012), 97 ff. 3. Vincent Chiao, Action and Agency in the Criminal Law, (2009) 15 Legal Theory 1 ff. 4. Meir Dan- Cohen, Actus Reus, in S. Kadish (ed.), Encyclopedia of Crime and Justice (1983), 18 ff. 5. Michael Corrado, Automatism and the Theory of Action, (1990) 39 Emory LJ 1191 ff. 6. R.A. Duff, Answering for Crime (2009), R.A. Duff, Action, the Act Requirement and Criminal Liability, in J. Hyman, H.C. Steward (eds.), Agency and Action (2004), 69 ff. 8. P.F. Fitzgerald, Voluntary and Involuntary Acts, in A.G. Guest (ed.), Oxford Essays in Jurisprudence (1961), 1 ff. 9. George P. Fletcher, On the Moral Irrelevance of Bodily Movements Symposium, (1994) 142:5 U Penn Law Rev 1443 ff. 10. H.LA. Hart, Acts of Will and Responsibility, in Punishment and Responsibility (2008) 91 ff. 11. Oliver Wendell Holmes, The Common Law (1991), Douglas Husak, The Alleged Act Requirement in the Criminal Law, in John Deigh, David Dolinko, (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011), 118 ff. 13. Douglas Husak, The Philosophy of Criminal Law (1987), chs. 4 and Douglas Husak, Does Criminal Liability Require an Act?, in The Philosophy of Criminal Law: Selected Essays (2010), 18 ff. 15. Douglas Husak, Rethinking the Act Requirement, (2007) 28:6 Cardozo L Rev 2437 ff. 16. Michael Moore, Act and Crime: the Philosophy of Action and Its Implications for Criminal Law (1993). 17. A.P. Simester, On the So- called Requirement for Voluntary Action, (1998) 1 Buff Crim L Rev Bernard Williams, Voluntary Acts and Responsible Agents, (1990) 10 Oxford J Legal Stud 1 ff,