Glenys Williams

My recent article in the Northern Ireland Legal Quarterly argues that fear has to be more properly recognised in the criminal law’s excusatory defences of loss of control and duress.

After a brief discussion of the categories of emotion, and a more detailed look at anger (according to Galen, a red and hot emotion) and fear (Galenically, a blue and cold emotion), and the effect they have on individuals, the article goes on to look at the relevance of characteristics in loss of control and in duress.

Both defences are emotion-laden, but, whereas loss of control (replacing the old provocation partial defence) now includes fear as an additional ‘trigger’ to anger (the trigger being necessary to invoke this partial defence), the former is, for a number of reasons, regrettably not of equal standing with the traditional anger emotion, not least because fear in itself does not ‘fit’ in with the requirement of having to show a loss of control, a requirement that was retained when the defence replaced provocation in 2009 by virtue of the Coroners and Justice Act. Generally, and unlike the fear reaction to fight, a more common reaction to fear is to freeze.

In duress also, although fear is the dominant emotion felt by the defendant, it plays no part at all in the defence, and perpetrators are expected to be able to resist their fear, demonstrate courage and respond to threats in the same way that heroes would respond. As such, the bar is set too high. Moreover, it is also accepted that even the reasonable person can feel fear and act accordingly. Similarly, it is accepted that the reasonable person can also lose self-control. Why therefore is a defendant penalised for doing exactly what the reasonable person would do in the same situations?

This is relevant because both defences include an objective element, i.e. a comparison with the virtuous reasonable person who is, for some – but not all – purposes, imbued with the defendant’s characteristics. However, in duress, any characteristics of the defendant attributed to the reasonable person do not include fear at all, even though this would be the main consideration when faced with a threat, including circumstantial threats.

Likewise, in loss of control, characteristics are only ascribed to the reasonable person which go to the gravity of the provocation; the reasonable person is not ascribed with the defendant’s characteristics for the purposes of ascertaining their capacity for control. A brief examination of choice and character theories highlights the difficulties in ascertaining the defendant’s capacity for control and in quantifying how much of an option the defendant really has to choose a different course of action. Strangely, for some reason, it is perceived that, when angry a person is considered to be ‘incapable of making a choice’, but when afraid, the same person is considered to be capable of choosing. Neither case law nor academic commentary can adequately explain why this is so.

A consideration of various emotion theories shows the problems associated with incorporating emotions into the defences. These include a discussion of Kahan and Nussbaum’s evaluative and mechanistic approaches; Eimear Spain’s ‘reasonable emotional response’ proposal; and Claire Finkelstein’s notion of ‘rational excuse’. These offer suggestions as to how emotions should and could be incorporated more effectively into the criminal law, as does the extreme emotional disturbance formula contained in the US Model Penal Code. This was rejected by the Law Commission in its report on Partial Defences to Murder back in 2004.

Widening the potential for solutions further, the article then turns to the relatively new field of ‘neurolaw’, an area of research looking into how neuroscience might be able to explain the effect emotions have on making decisions, on the ability to exercise self-control and to resist fear (if that is possible). The pre-frontal cortex (PFC), particularly the amygdala, is the region of the brain that manages emotions. Although studies have shown that damage to the PFC might affect self-control, they still cannot show that this is because a defendant is unable to control their actions or whether they simply choose not to. Therefore, unfortunately, the current state of play is that neuroscience cannot provide an answer to how behaviour is directed as studies have tended to be small, and the focus has been more on the notion of predetermined behaviour. In addition, even neuroscience is unable to say what a person’s state of mind was at the time an offence was committed.