Prior Fault Criminalization

Abstract Prior Fault Criminalization is the first long-form book of its kind to explore the contested concept of ‘prior fault’, and its articulation within criminal law offences and defences. The ambition of such rules may be stated simply: a defendant should not escape criminal sanction through an appeal to their own prior blameworthy conduct. Thus, for example, where a person puts themselves in a state of incapacity through alcohol or drugs, they should not be able to rely on that state to explain later ‘mistakes’ causing harm, or where a person manipulates another into attacking them, they should not be able to rely on that attack to justify force in ‘defence’. The book is a theoretically informed study of the concept of ‘prior fault’ in criminal law, providing comprehensive coverage and critique of the manifestation of prior fault rules in the Law of England & Wales along with comparative examination of other common law and civil law jurisdictions. It reveals an expansive field of criminal rules characterized by incoherence, inconsistency, and unfairness, and a series of appeals to scientific and clinical assumptions that are wholly misconceived. The book identifies frameworks for theoretical reconstruction of such rules, drawing on findings from the extant psychological and neuroscientific literature, as well as a set of original empirical studies, to identify more robust markers of blame, which are then translated into a set of doctrinal reform recommendations relevant to the many jurisdictions that use prior fault concepts in their criminal law.