Ordinary and reasonable people: the design of objective tests of criminal responsibility

Eric Colvin, Bond University

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Colvin, Eric. (2001) Ordinary and reasonable people: the design of objective tests of criminal responsibility. Monash University Law Review. Vol 27 (2) pp. 197-228

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Abstract

This paper reviews the design of objective tests of criminal responsibility for serious offences. It is argued that their design should reflect two fundamental principles. First, there is the principle that there should be no penal liability without fault. It follows from this principle that there should be no responsibility for failure to attain a standard that was beyond the capacities of the accused. Secondly, there is the principle of proportionality between culpability and penal liability. It follows from this principle that, if objective tests are to be used for serious offences, responsibility should be restricted to breaches of minimal standards of conduct that were attainable with reasonable ease. We should reject major penal sanctions for failure to attain idealistic or difficult standards. Moreover, in order to ensure that a standard could have been attained with reasonable ease, objective tests should be adaptable for any special handicaps of the accused. The paper uses these ideas to review the formulations of criminal negligence and of the objective elements in the defences of self-defence, provocation, duress and necessity.