Towards a more contextual approach to blame attribution: the case of the Diminished Responsibility Offender

With the proliferation of nonstandard crimes which do not appear to have a clear wrongdoer nor a clear wrong, and which do not denote a traditional, capacity based approach to criminal responsibility, there exists a need within criminal law theory to take stock. Many commentators (though not all) yearn for a reaffirmation of the true, moral purpose of the criminal law and a delimitation of its boundaries.1* However, with more formal recognition of an environment outside the criminal law which is ever expanding and mutating, such an ambition is unlikely to materialise. Even scholars such as Victor Tadros, who argues that the ‘central idea of holding an individual responsible’ is, in fact constant or ‘historically stable’,2 acknowledges that this does not entail that the idea of criminal responsibility is historically stable.3 It is argued that a more attainable aim is for clearer insight into the workings and interconnectivity of such aspects, with a view to informing future directions. To this end, this paper argues, (albeit somewhat ambitiously), for a more particularised view of blame and takes the example of the ‘Diminished Responsibility Offender’4 to promote contextualisation both in the structure and substance of the law, based on current trends in criminal law theory, in addition to the behavioural sciences. Examining the issue of criminal responsibility through the lens of a particular type of offender facilitates a deeper, and arguably more tangible, understanding of the nature of the concept. This paper has selected the doctrine of diminished responsibility as a pertinent prototype, given its unique and dichotomous position within the criminal law; it vacillates between presenting itself as a manifestation of the heart of individual responsibility, and existing somewhat on the periphery of the criminal law, as a so called partial defence. Furthermore, it reveals the capacity based approach to criminal responsibility as a legitimating factor of its existence, while concurrently exposing the innate problems pertaining to the same