1

Prior fault: blocking defences or constructing crimes

J.J. Child, University of Sussex

When assessing a defendant’s (D’s) liability, the orthodox approach is necessarily narrow and

precise in its focus. We do not ask, for example, whether D satisfies an offence mens rea ‘at

some non-specific point in D’s life’, or whether ‘all things considered’ we believe she is

deserving of a defence: such questioning may help us assess D’s moral character, but they are

too general and too subjective to drive the enquiries of criminal law. Rather, criminal liability

is event specific; asking whether D satisfied the mens rea at the time of completing the

conduct required for the actus reus, and whether the circumstances at that time give rise to a

defence. In this manner, the law assesses and criminalises D for her role in the particular

event, not for her more general character.1

In certain cases, however, the narrow focus of the orthodox approach can become

problematic, and this is never more apparent than in relation to so-called ‘prior fault’ cases.

Consider the following examples:

1) D decides to kill her enemy V. Fearing that she may lose her nerve, D becomes

heavily intoxicated in V’s company, knowing that she becomes violent when

drunk. While intoxicated and out of control, D kills V.

2) D decides to kill her enemy V. D taunts V in order to elicit a violent reaction. V

attacks D (as D anticipated) and D kills V in ‘self-defence’.

3) D voluntarily becomes intoxicated. Whilst drunk, D decides to play with her new

gun and accidentally shoots and kills V. D is unlikely to have made the mistake if

sober.

4) D voluntarily becomes intoxicated. Whilst drunk, D mistakenly believes that V is

about to attack her. D shoots and kills V in self-defence. D is unlikely to have

made the mistake if sober.

Thanks to Adrian Hunt and Amir Paz-Fuchs for comments on a draft of this paper. A draft was also presented

at the University of Sussex as part of the Criminal Law, Criminal Justice and Criminology Group within the

Centre for Rights and Responsibilities. 1 Except, of course, to the extent that her character is revealed through the event.

2

In each example, if we apply the orthodox approach, it is difficult to conclude that D should

be liable for the death of V. This is because, at the point of D’s conduct that directly causes

death, D either lacks physical control and/or mens rea as to causing harm (1 and 3), or

appears to have a valid exclusionary defence (2 and 4). However, this conclusion does not

appear acceptable. D’s behaviour when acting to directly cause death (T2) may be defensible

in isolation, but when considered in light of her prior fault at the earlier point (T1: when

planning to lose control in order to kill (1); when planning to manipulate criminal defences

(2); or when choosing to lose partial control or faculty through intoxication (3 and 4)) such

exculpation is intuitively much less justifiable. Thus, we are inclined to question the orthodox

approach: not necessarily to reject it completely (we do not want to punish D for unrelated

activities or thoughts), but rather to expand it in certain cases to allow for consideration of

D’s behaviour at T1 where that behaviour is intimately linked to her behaviour at T2.

The task for legal theorists is to construct a set of rules that will allow for T1 to be

considered in cases of this kind, but to do so fairly, and without undermining the coherence

and appropriate standing of the wider orthodox approach. Approaching this task, because of

the structural similarities between prior fault cases (such as those in our examples above),

commentators have generally looked for a single solution to apply consistently between

each.2 As we will discuss, the failure of any single approach to provide the mechanism

required for these cases is important in a normative sense: we need a robust and defensible

method for finding liability in appropriate cases. However, the criticism of such proposals,

and their varying strength in relation to different examples of prior fault, are also interesting

for what they tell us about the structure of the problem, and indeed, the wider offence/defence

distinction.

It is the contention of this paper that, if we begin with a principled separation of

offences and defences, the ‘single’ problem of prior fault becomes four separate problems.3

Matching our four examples above, this separation marks the difference between:

1) Specific prior fault and the construction of offences;

2 See, for example, Robinson, ‘Causing the conditions of one’s own defence: A study in the limits of theory in

criminal law doctrine’ (1985) VirLR 1; Alexander, ‘Causing the conditions of one’s defence: A theoretical non-

problem’ (2013) CL&Phil 623. The single solution approach is also reflected in current leading textbooks, for

example, Ashworth and Horder, Principles of Criminal Law (2013); Simester, Spenser, Sullivan and Virgo,

Simester and Sullivan’s Criminal Law (5th

ed, 2013) 121. 3 A similar line, rejecting a single approach (and, thereby, a single problem), is also pursued by several authors

in recent proceedings from a conference on ‘Actio Libera in Causa’ in Pennsylvania (2011), published in

Criminal Law and Philosophy (2013).

3

2) Specific prior fault and the blocking of defences;

3) General prior fault and the construction of offences; and

4) General prior fault and the blocking of defences.

This four part separation is vitally important and will be justified more fully as we discuss

each category in turn below. The contention of this paper is that the four category separation

is essential to recognise structural differences in the operation of offences and defences, to

recognise the different principles engaged in each context within the prior fault problem, and

therefore to recognise the need for different (potential) solutions in each case. However, the

discussion is equally important in its search for coherence and consistency within each

category. In this manner, where Robinson criticises the current law in America for its

remarkably inconsistent approach to prior fault4 (a criticism that can be levelled at English

law with equal force5), this paper seeks to explain and justify a degree of (principled)

inconsistency, whilst agreeing with his criticism in the narrower contexts of our four

identified categories.

Category I: Specific prior fault and constructing offences

Prior fault cases in Category I are those in which D possesses the mens rea for an offence at

T1, but lacks mens rea (including voluntary movement6) at T2. The classic example of this

involves voluntary intoxication.

D decides to kill her enemy V. Fearing that she may lose her nerve, D becomes heavily

intoxicated in V’s company, knowing that she becomes violent when drunk (T1). While

intoxicated and out of control, D kills V (T2).

Category I (often referred to as ‘grand schemer’ cases7) represents the paradigm and

foundationary example of prior fault doctrine: actio libera in causa (a state resulting from 4 Robinson (n1) Part 1.

5 English law does not include the added problem of inconsistency between State Codes, but its inconsistent

approach to prior fault between different defences is plain. For example, compare the very strict approach within

duress that will disqualify the defence on the basis of negligent association (Hasan [2005] UKHL 22), with the

comparatively narrow requirement of ‘incitement’ or planning needed to disqualify a loss of control defence

(Coroners and Justice Act 2009, s55(6)(a) and (b). See remarks in Oye [2013] EWCA Crim 1725 [43]. 6 I prefer to analyse the voluntariness of movement as a mens rea element. However, as little turns on this for

present purposes, it will not be pursued in this paper.

4

voluntary action).8 It is generally agreed that, in cases of this kind, D should not be allowed a

defence at T2 (despite her lack of capacity) and will therefore be liable for the offence (in our

example, murder). This position is reflected in the current law in AG for NI v Gallagher,9

where Lord Denning made clear (in now widely accepted dicta) that English law would allow

no defence in such circumstances regardless of whether the offence committed was one of

basic or specific intent.

The result of this approach, a finding of liability, is uncontroversial. However, two

problems have emerged. The first is one of legal principle: how can we justify finding

liability for D’s acts at T2 if those acts are not performed voluntarily? This problem begins to

hint at our contention that this category is better analysed in terms of constructing offences as

opposed to blocking defences, but more on this below. The second problem is one of

consistency: would/should the same approach apply, in the same way, if D lacked capacity as

a result of a non-intoxicating external factor (involving potential automatism) or internal

factor (involving potential insanity)?

Beginning with the problem of legal principle and theoretical underpinning, several

commentators have offered potential explanations. These explanations have generally come

within three types. The first type, exemplified by the traditional interpretation of actio libera

in causa within German law, will only find liability where D has the requisite mens rea both

at T1 and at T2.10

This approach will find liability where D becomes intoxicated, for

example, to lose her inhibitions. However, it is too narrow for present purposes. English law

will already allow for liability in the context of intoxicated defendants that do not lack mens

rea at T2 (an intoxicated mens rea is still a mens rea11

); the problem case (exemplified above)

concerns D who lacks mens rea at T2. Here, it seems that the traditional German approach

will not help us.

The second potential explanation accepts a lack of capacity at T2 (viewed in

isolation). However, for Finkelstein,12

by re-describing D’s conduct to include both T1 and

7 This is because, unlike standard intoxication cases, here D is actively planning to commit an offence while out

of control. 8 As we will see, this approach has since been expanded to the other categories of prior fault.

9 [1963] AC 349.

10 Herrmann, ‘Causing the conditions of one’s own defence: The multifaceted approach of German law’ (1986)

BYU LRev 747, 763-765. 11

Kingston [1994] 3 WLR 519. 12

Finkelstein, ‘Involuntary crimes, voluntarily committed’ in Shute and Simester (eds.) Criminal Theory:

Doctrines of the General Part (2005) 143, 163-9.

5

T2, D’s liability can be constructed upon a more general complex act description. Thus, for

example, if we can describe D’s complex act as ‘becoming intoxicated and then killing V’,

where this description is both accurate (in causal terms) and acceptable (in descriptive terms),

then D’s actions (including those at T2) become the product of her agency.13

Although this

approach offers a route to liability in our example, it is not an attractive one. First, this is

because the re-description approach is overly subjective: speaking of acceptable act

descriptions in moral terms is one thing, but to base criminalisation on them (without specific

criteria), and to explain the process to a jury, would be quite another. Secondly, it is difficult

intuitively, even as part of a complex act description, to accept that D’s actions at T2 are

anything other than involuntary: D, at this point, is not in control of her body. In this manner,

the re-description approach seeks to create something of a legal fiction in order to find

liability, an approach that the criminal law should (where possible) avoid.

The third potential explanation, outlined by Robinson14

and (more recently) by

Dimock,15

allows a defence at T2 (intoxication or automatism) but finds liability through T1.

For Robinson, in line with his more general theory, D commits the offence because she is

culpable in causing the conditions of her defence. In this manner, D’s acts at T1 are presented

as similar to the use of an ‘innocent agent’,16

or even to a conspiracy with one’s-later-self,17

and are (as such) deserving of criminalisation. Dimock reaches a similar conclusion. She

stresses that although D cannot be liable for involuntary conduct at T2 alone, if we can ‘trace’

the harm caused at T2 back to voluntary and culpable conduct at T1, then (in common with

innocent agency; conspiracy; corporate liability; etc) it should be possible to construct

liability.18

This approach then leads Dimock, echoing Robinson, to discuss what manner of

culpability should be required at T1: including a ‘strong’ causal link with T2; foresight of T2;

mens rea as to future offending; and so on. As Dimock concedes, ‘in the context of criminal

liability, the devil will be in the details’.19

The explanations of Robinson and Dimock are the most intuitively plausible of those

we have considered (and come closest to the approach favoured in this paper) in that they

13

Ibid 165-6. 14

Robinson, (n1) 1. 15

Dimock, ‘Actio libera in causa’ (2013) CL&Phil 549. 16

Robinson, (n1) 34. Similar logic has also appeared in consecutive editions of Smith and Hogan’s Criminal

Law. 17

Katz, ‘Entrapment through the lens of the actio libera in causa’ (2013) CL&Phil 587, 591. 18

Dimock, (n15) 565-7. 19

Ibid. 566.

6

accept (to some extent) that the focus of liability should be moved from T2 to T1. However, it

is contended that in each case the analysis offered is unnecessarily complex, seeking for the

creation and introduction of special rules that are not required to find liability.20

For

Robinson, it is contended that such complexity is the result of his one-size-fits-all approach to

the problem of prior fault, an approach that prevents him focusing on the unique factors at

play within this category. Equally, for Dimock, there may be similar issues in relation to her

focus on tracing liability from T2, as opposed to focusing more directly on T1.

In relation to Category I prior fault cases (where D acts with mens rea at T1, and

involuntarily at T2), it is contended that there is no need for special rules relating to prior

fault at all. In these cases, D is not causing the conditions at T1 for a defence at T2, but rather

committing acts at T1 that she hopes will lead to harms at T2 that she will not be responsible

for (ie, that she will not commit an offence at T1 or T2). However, by acting in this manner,

our standard rules of legal responsibility (and liability) should already lead to the conclusion

that D is straightforwardly liable.

As T1 is the last occasion in which D acts voluntarily, this becomes our only focus for

potential liability. To find actus reus, we ask whether D’s conduct (at T1) was performed in

the required circumstances, and caused any relevant results (in our example, the killing of V).

In line with standard causation rules, D’s acts need not be an especially ‘strong’ cause (as

suggested by Dimock), but simply a ‘but for’ cause which has a more than de minimis

impact.21

The actions of D after T1 should not be analysed as separate or independent causes

(as they are, to varying extents, by Robinson and Dimock). Rather, after T1, D’s uncontrolled

body becomes nothing more than a tool of her prior conduct, more accurately compared to a

bullet in flight or (acknowledging the likely unpredictability) to the release of stampeding

cattle. In such examples, D’s act (shooting the bullet; releasing the cattle) would be presented

as causing the harm by bullet or cattle even though D loses control of each before harm is

brought about. We need not pretend that the bullet or cattle act as an innocent agent; form a

conspiracy with D; or require a tracing of culpability. Rather, unconscious objects of this

20

Robinson recognises the complexity of his approach, but justifies it by comparison to equally complex (and

unfair) operation of the current law. Whilst we agree with this analysis, it is contended that the approach in this

paper reaches the same conclusion as Robinson (in terms of liability), but through a more logical and

straightforward mechanism. 21

Adams [1957] Crim LR 365.

7

kind, and equally the uncontrolled body of D, are simply tools (a means to an end).22

As

Williams remarked:

‘Suppose … that a man sets a time-bomb to kill people, and is asleep when it goes off;

obviously he is guilty of murder. Similarly, if he fuddles himself with drink in order to

commit murder, he turns himself into a kind of human time-bomb.’23

Once we accept that D’s behaviour after T1 can be (most accurately) presented in this

manner, it is clear that her satisfaction of actus reus elements will not require any special

rules of prior fault. Our focus shifts to mens rea, and to question whether D had the required

mens rea when performing the conduct required for the offence (ie, at T1). Where this is the

case, as it is with our intoxicated killer, D will be liable. D may raise the issue of intoxication

to demonstrate that she was not in control at T2, but this will not undermine her liability at

T1: in fact, her lack of control at T2 (the fact she becomes a simple tool) is a necessary factor

for us to find liability at T1.

It is contended that this is the best approach to Category I cases, constructing liability

through the application of standard rules. However, there are two areas of criticism that

require brief discussion: that the preferred approach is descriptively flawed in that the

conduct of (for example) becoming intoxicated cannot be presented as the conduct element of

an offence; and that it is flawed in casual terms because there may be an insufficient link

between the conduct of (for example) becoming intoxicated and the later harms at T2.24

In

response, it is useful to separate result crimes, conduct crimes, and strict liability offences.

In relation to result crimes (such as murder in our example), the causal criticism

maintains that D’s conduct at T1 is not the proximate cause of harm at T2: essentially, that

D’s lack of control will break the chain of causation.25

However, just as the flight of D’s

bullet, or the stampede of released cattle would not break the causal chain, it is not accepted

that D’s uncontrolled movements would be any more likely to do so. Importantly, this would

not lead to unchecked causation and the potential for over-criminalisation. This is because

22

Robinson acknowledges this approach but, wedded to his wider thesis, does so only in analogy with his own

approach. Robinson, (n1) 37. 23

Williams, Textbook of Criminal Law (1978) 422. 24

These criticism are forcefully made in an excellent article by Finkelstein, (n12) 143. 25

Ibid 146-53.

8

D’s liability will also be contingent on proof of mens rea at T1: proof that D (in our example)

acted with the intention to kill or cause GBH, not in general terms, but through that conduct.

Thus, for example, if D lost control through intoxication whilst considering or even intending

to kill V in the future, and then did cause death whilst out of control, she would not commit

murder: she did not possess mens rea at T1.

The descriptive criticism likewise, for result crimes, has little impact. This is because

result crimes merely require D to perform conduct that causes the result. As the type of

conduct is not specified, it is therefore easier to describe D’s conduct of (for example)

becoming intoxicated, as the conduct causing death. This may seem unintuitive at times,

particularly if we consider D’s criminal attempt at a stage just short of losing control,26

but

this is not a conclusive criticism: many attempts will involve otherwise innocent behaviour.27

For conduct crimes, the causal criticism raises some concern. For example, lets

imagine D that would like to have intercourse with V, but knows that she will not consent.

Where D becomes intoxicated (not planning to rape V), would our approach find liability

where D has non-consensual intercourse with V whilst out of control? After all, we do not

seem to have a result element that must be intended by these acts at T1. The answer is ‘no’.

This is because, even for ‘so called’ conduct crimes, D must possess mens rea as to conduct.

D will not be liable for rape in this example because the mens rea for rape requires D to

intend to penetrate V by this conduct, an intention that D lacks in our example. Thus, for both

result and conduct crimes, liability will be controlled by the requirement of mens rea at T1.

Perhaps more problematic, for conduct crimes, will be the descriptive criticism.

Conduct offences do not require a non-specific act causing a result, but provide some level of

detail that may not match D’s conduct at T1. For example, for rape, how can we describe D’s

conduct at T1 (becoming intoxicated) as the conduct of sexual penetration?28

The answer, of

course, is that we cannot. However, rather than seeing this as a conclusive criticism of our

approach (it is a criticism that also applies to alternative approaches29

), it is perhaps better

presented as a criticism of the prevailing interpretation of conduct crimes. For example, if the

conduct element of an offence were interpreted narrowly in terms of bodily movement (or

omission), then almost all conduct crimes can be described in causal terms (for example,

26

Katz, (n17) 594; Herrmann, (n10) 747. 27

For example, the act of releasing the cattle in our example of causing death by a directed stampede. 28

Katz, (n17) 529; Finkelstein, (n12) 145, 153-6. 29

Recognised by Finkelstein at 167.

9

conduct causing penetration) and the criticism is avoided.30

D’s conduct when becoming

intoxicated is not the conduct of penetration, but (like firing the bullet or releasing the cattle)

it is conduct causing penetration.

Strict liability offences (whether result or conduct crimes) create no further

descriptive problems. However, they require separate consideration because of the unique

impact of the causation criticism. Take the example of D who has an unexpected seizure

while driving, crashes and causes death. Could D be liable for a (hypothetical) strict liability

homicide offence?31

At T2, when D’s car hits V, D is not acting voluntarily. However, if we

apply the preferred approach, we must acknowledge that at T1 (just before the seizure) D is

acting voluntarily with the mens rea (none) required for the offence. This can be seen as (yet

another) reason to question strict liability within the law, but it is a problem that the preferred

approach must be able to cope with.

To avoid a finding of liability, we must either concede that D’s lack of control breaks

the chain of causation (undermining the preferred approach), or focus on alternative causation

rules: for example, foreseeability and/or blameworthiness, and look for a break in the causal

chain in cases of this kind only. With regard to this second option, which must be preferred,

the concern is that requiring foreseeability and/or blameworthiness is to incorporate fault into

offences that are designed not to include it.32

However, such an approach can be kept within

bounds. For example, it would be possible to maintain that where D loses control between

conduct and result (be this control of her body, or through the use of a bullet or cattle etc),

legal causation of the harm requires this lack of control to be foreseeable. Where D acts

through a bullet or cattle etc, this assumes that D must have a basic understanding of the tool

(understanding that her acts could lead to uncontrolled results) in order to be the legal cause

of any harm that results from it. In the same way, where D’s tool is her own unconscious

body, the same principle would require a basic understanding at T1 of the potential for losing

control. Thus, strict liability offences will only come within Category I where D’s

involuntariness was at least broadly foreseeable.

Having discussed the theoretical underpinnings of this approach, it is important to

acknowledge its potential for internal consistency within this category of ‘prior fault’.

Category I includes all cases in which D has mens rea at T1 and brings about criminal results

30

This response leads to a discussion of action within the criminal law that cannot be perused here. 31

Finkelstein, (n12) 146-53. 32

Ibid. 148-9.

10

(whilst lacking control) at T2. In this manner, the reason for D’s lack of control (intoxication;

a non-intoxicating external factor; or an internal factor) should be irrelevant.33

For example,

where D acts at T1 with the intention by those acts to cause death, whether she plans to lose

control through intoxication (our paradigm example); through hypnosis; or through an

omission to take medication; her culpability remains the same, and the preferred route to

liability will be equally consistent. The inconsistent approaches (within this category) of the

current law should therefore be criticised and amended.34

Category II: Specific prior fault and blocking defences

Our second prior fault category involves cases in which D manufactures events at T1 so that

when she commits an offence at T2 (satisfying both actus reus and mens rea) she may avail

herself of a criminal defence. For example,

D decides to kill her enemy V. D taunts V in order to elicit a violent reaction (T1). V

attacks D (as D anticipated) and D kills V in ‘self-defence’ (T2).

Unlike Category I cases, there is no issue here of constructing the missing elements of an

offence: D’s actus reus and mens rea at T2 are uncontroversial. The question is rather, having

satisfied that offence, should D’s conduct at T1 undermine the availability of a defence at T2?

Unsurprisingly, the current law’s answer has been to block D’s defence in these

circumstances, leaving D liable for the offence (in our example, murder). This is not only the

case where D culpably manufactures circumstances of self-defence,35

as in our example, but

equally in the case of duress,36

necessity;37

and the partial defence of loss of control.38

In this

manner, unlike Category I cases, the current law relating to Category II is reasonably

consistent in result and method (blocking defences). As discussed further below, the same

33

Echoed in Dimock, (n15) 561. 34

For a discussion of that inconsistency, see, Mackay, ‘Intoxication as a factor in automatism’ (1982) CrimLR

146; Mitchell, ‘Culpability for inducing mental states: The insanity defence of Dr Jekyll’ (2004)

JAmAcadPsychiatryLaw 63. 35

Rashford [2005] EWCA Crim 3377 [19]. 36

Hasan [2005] UKHL 22. 37

This is likely through analogy with duress. It may also support Lord Denning’s famous dicta about the limits

of necessity in Southwark London Borough v Williams [1971] 2 All ER 175. 38

Coroners and Justice Act 2009, s55(6).

11

method is favoured in this paper. However, despite this broad level consistency, the precise

circumstances leading to the blocking of a defence remain worryingly unclear, as well as

inconsistent depending upon which defence is at issue. Before we move to the analysis of

these circumstances (assuming the preference for a ‘blocking’ approach), it is useful to

consider two alternatives approaches in the literature.

The first alternative is the general approach to prior fault outlined by Robinson.

Consistent with his analysis of Category I cases, Robinson would allow a defence at T2 (in

our example, self-defence), but would find liability (in our example, for murder) on the basis

of D’s prior fault at T1. The main advantage of this approach, according to its supporters, is

that liability can be found without undermining D’s defence at T2. In this manner, D is still

allowed (and even encouraged) by the available defence to act in an appropriate manner: to

defend herself in our example, or (more convincingly) to choose a lesser evil in

circumstances of necessity.

‘Assume that an actor sets a fire that threatens a nearby town to create the conditions that

will justify his using his enemy’s farm as a firebreak. Denying a justification defence

might dissuade him from undertaking such a scheme, but if it fails to dissuade him, the

unavailability of the defence may reduce his incentive to set the firebreak and save the

town.’39

It is further contended that as an intervening third party would be justified in setting the

firebreak, or in defending D from V’s attack, it would be illogical to block D’s defence in the

same circumstances.40

In fact, the strength of this logic led Larry Alexander to label the

whole discussion a ‘theoretical non-problem’, seeing the Robinson-type approach as self-

evident.41

Although Robinson’s method provided our lead into the preferred approach for

Category I cases, that is not true for Category II cases. First, this is because liability (for

Robinson’s approach) relies on a faulty causal link between D’s acts at T1 and the harm at

T2. Unlike Category I cases, where D’s body becomes the unconscious tool of her acts at T1,

Category II cases involve potentially intervening acts by a conscious D at T2 (in our example,

39

Robinson, (n2) 28. For a similar example, see Alexander, (n2) 623-4. 40

Alexander, (n2) 626. 41

Ibid.

12

the act of ‘justified’ killing), as well as the potentially intervening voluntary acts of V (in our

example, attacking D).42

Secondly, and perhaps more importantly, for cases in Category II,

Robinson’s analysis becomes unintuitive to the point of incoherence. This is because, even if

a causal link could be formed between D’s conduct at T1 and the harm at T2, Robinson’s

approach requires us to view the harm (in our example, killing) as at once a criminal act

resulting from T1, and a justified act resulting from T2.43

Robinson sees the justification at

T2 as an incentive for D to ‘do the right thing’, and yet D has already forfeited her right to the

defence from her conduct at T1, so where is Robinson’s incentive? Any incentive is as

functionally empty as the promise of the defence: D’s justified (T2) and unjustified (T1)

conduct will always lead to liability.

A second alternative, that would also allow for a defence at T2, has been offered by

Farrell.44

Under this approach, D’s conduct at T1 will not undermine her defence at T2, but

will qualify it considerably: D may perform minimum acts of self-preservation as valid self-

defence at T2, but may not go beyond this (even if such conduct would otherwise be justified

by the standard rules of self-defence).45

In this manner, Farrell does not rely on a causal link

from D’s conduct at T1, or the unintuitive conclusion that the same result is both justified and

unjustified. However, his approach remains problematic. Although Farrell talks of a moral

right to self-defence,46

there is little to suggest why this should be reflected as a legal right.

Fundamentally, it seems wrong that D should be able to make use of a defence in order to

cause harm to V at T2 (even within Farrell’s restrictive terms47

) when this is exactly what D

has culpably procured from her conduct at T1.

It is this final criticism of Farrell’s approach, building upon our discussion of

Robinson’s alternative, that (I believe) lies at the heart of the Category II cases (and their

distinction from Category I cases). The first category of prior fault cases centred on potential

problems with coincidence, with the harm at T2 lacking physical control (at that time). Thus,

our challenge was to find a point at which coincidence could be found in order to attribute

full criminal responsibility to D: in order to construct and identify the criminal wrong within

42

This point is highlighted by Ferzan, ‘Provocateurs’ (2013) CL&Phil 597, 603; Katz, (n17) 593; Farrell, ‘What

should we say about contrived ‘self-defence’ defences? (2013) CL&Phil 571, 578. 43

Ferzan describes this position as ‘rather odd’. Ferzan, (n42) 603. 44

Farrell, (n42) 571. 45

Ibid, 582. This approach also gains some support from German law: Herrmann, (n10) 756. 46

Farrell, (n42) 585. 47

Setting Farrell’s new standard of minimum (as opposed to reasonable) force would be another difficulty of

this approach.

13

a single event. Cases in Category II are different. For these cases, we have our criminal event

(D completes the actus reus and mens rea at T2), and there are no problems with coincidence.

Our focus is on the availability of a defence, and thus, rather than looking at the basis for

offence liability (as Robinson arguable does), we need to consider the theoretical basis for

criminal defences.

Criminal defences (as opposed to inculpatory rules such as intoxication and

automatism), accept that D has committed a wrong, but prevent (or mitigate) liability on the

basis of secondary considerations. These considerations (defences), vary considerably in their

detail, but each holds to certain general principles that are helpful to us here. One such

principle, most often discussed in relation to excusatory defences (for example, duress), is

that D should be allowed a defence where her offending does not reveal a vicious character

but rather an unlucky fate; that she was trapped; in crisis; that she demonstrated an

understandable, or reasonable, human frailty; where ‘there but for the grace of god go I’.48

Indeed, although less often discussed, this requirement of ‘crisis’ is equally central to

justificatory defences (for example, self-defence): D is never justified to commit an offence

in general, she is justified in these circumstances. In each case, D is not allowed to choose

take the law into her own hands, to become a vigilante, but where choice is removed through

crisis, we can accept that certain exceptions must be permitted. It is on this basis that D’s

potential defence at T2 can (and should) be blocked in Category II cases. D’s acts at T1 (in

our example, taunting V) have artificially created the ‘crisis’ at T2 (in our example, the need

for physical defence); D’s prior acts change her normative position;49

she is not a victim of

circumstance; she has chosen; and a common-sense morality would deny her a defence on

that basis.50

As we have highlighted, this common-sense morality is already generally reflected by

the current law. However, within this category of cases, both the clarity of rules governing

when defences will be blocked, and the consistency of rules between defences, are very

poor.51

Although we do not have scope to explore these in detail, it is useful to sketch a

potential way forward to demonstrate the importance of these rules and the danger of

48

Wilson, ‘The structure of criminal defences’ (2005) CrimLR 108. 49

Ormerod, Smith and Hogan’s Criminal Law (13th

ed, 2011) 392, quoting from Keane [2010] EWCA Crim

2514. 50

Ferzan, (n42) 605. In this case, both D and V are wrongdoers, 615. 51

See n5 above.

14

continued ambiguity. It is contended that, before D’s defence is blocked at T2, she must have

been reckless at T1 in relation to two core facts:

1. D must be reckless as to causing the circumstances of the defence (in our example,

causing V to attack). In this manner, D has at least chosen to risk manufacturing the

crisis that would otherwise give rise to a defence. D’s foresight of her causal role is

also vital to avoid difficult cases such as the executioner that might otherwise be

blocked from a defence of killing in line with her job, or violence involved in police

work: in each case D may foresee their offending and their use of a defence, but they

will not (if acting legitimately) foresee themselves as the cause of the unlawful

actions of V;52

2. D must be reckless as to her own offending (in our example, as to killing V). Again,

before we can say that D has manufactured her defence at T2, it is logical to require

that she should foresee her future offence. This requirement would also allow courts

some discretion in duress cases, for example, where D might foresee threats to

commit minor offences but is then threatened to commit serious offences. Where the

disparity is very great, D’s defence may not be blocked on the basis of her failure to

foresee the type of offending later completed.53

Dimock contends that, for the

defence to be blocked, D should have the mens rea for the offence at T1.54

However,

a requirement of full mens rea is surely unnecessary: we are not constructing liability

at T1 (as we were for Category I cases), we are merely seeking criteria that

undermine D’s defence based claim of being trapped in a crisis.

A minimum standard of ‘recklessness’ has been chosen because it is the minimum fault

requirement demonstrating some choice on D’s part (here a choice to risk) procuring the

conditions of a defence.55

Through choice, of course, the claim of being trapped is likely to

be undermined. However, unlike an ‘intention’ to procure a defence, it could be argued

recklessness has the potential to block defences too widely. For example, where D wears

provocative clothing on a night out, or D (a black woman) walks through an area known for

race related violence, she may foresee attack from V and she may foresee the use of defence.

If D is attacked in these circumstances and causes harm to V in self-defence, will the defence

52

Ferzan, (n42) 618. 53

See discussion in Dimock, (n15) 558. 54

Ibid. 558. 55

It is on this basis I object to blocking defences on the basis of negligence, as we see in the current law of

duress. See minority speech of Baroness Hale in Hasan [2005] UKHL 22; and discussion in Ferzan, (n42) 615-

6.

15

be blocked?56

The answer is no. This is because recklessness incorporates a reasonableness

standard within the second limb: to be reckless, it must be unreasonable for D to have taken

the risk foreseen.57

Thus, where D wears provocative clothing in our example, or walks

through a violent area, she may foresee attack from V; she may foresee the use of defence;

but she will not (usually) be reckless to either because her running of the risk is not

unreasonable. D’s defence will only be blocked where she acts with intention (she becomes a

vigilante),58

or her running of a foreseen risk is unreasonable in the circumstances.

A further potential objection is that although D may have been reckless as to

procuring the defence, the recommended scheme will block the defence even where D has

not (in fact) caused the events foreseen. For example, if D taunts V (as in our example) to

provoke a reaction, and V attacks, should D’s defence still be blocked if it transpires that her

provocation had no effect on V who was planning to attack anyway? D may be reckless at

T1, but she did not create a risk.59

Although there is some force in this point, it is not

sufficient to add a complex and burdensome additional causal requirement. It is contended

that, in these very few cases, even when D has not in fact created the circumstances of her

defence, her attempt to do so is still a reasonable basis for denying that she has been trapped

in a crisis, and denying her a defence.

Category III: General prior fault constructing offences

Category III of prior fault, as with Category I, involves D that does not commit an offence at

T2 because of a lack of mens rea and (potentially) a lack of voluntary movement. However,

unlike Category I cases, D’s offence cannot be located at T1 because D does not have the

mens rea for an offence at this stage either. For example,

56

Concern about these cases is discussed in Robinson, (n2) 40; Herrmann, (n10) 753-5; Ferzan, (n42) 599, 617,

621. 57

G [2004] 1 AC 1034. 58

The only exception is boxing in relation to offences against the person and the defence of consent: here we

would not want to block D’s defence despite intentionally procuring the circumstances of the defence (arranging

the boxing match) and intentionally harming V (in the boxing match). However, rather than seeing this as a

criticism of the recommended scheme, this may be better presented as a (further) criticism of place of boxing

within the law and/or the presentation of ‘consent’ as a defence. Neither can be pursued here. 59

Robinson, ‘Prohibited risks and culpable disregard or inattentiveness: Challenge and confusion in the

formulation of risk-creation offences’ (2003) TheoIL 367, 376-7.

16

D voluntarily becomes intoxicated. Whilst drunk, D decides to play with her new gun

and accidentally shoots and kills V. D is unlikely to have made the mistake if sober.

Finding liability in these cases creates serious difficulties; requiring the construction of an

offence (in our example, a homicide offence) without essential offence elements at any time

in the event.60

Indeed, recognising this as a separate category of prior fault is useful to

insulate the previous categories from problems and criticisms in this area.

The current law, through the intoxication rules, will construct liability at T2 (allowing

D’s voluntary intoxication to substitute for a lack of mens rea) for offences classified as basic

intent, but not for offences classified as specific intent.61

Although the results of this approach

are defensible,62

the principles underlying them are intensely problematic. First, this is

because it appears to be based on the widely discredited idea that becoming voluntarily

intoxicated at T1 is equivalent to foresight of a specific risk (recklessness) at T2,63

and even

more difficult, that it is equivalent to intentional movement at T2 (we refer to this below as

the ‘equivalence thesis’).64

The equivalence thesis is problematic in its own right, but the

latter (equivalence with intentional movement) also creates problems of application: leading

to inevitable debate and confusion about what constitutes intentional conduct (the lack of

which can be replaced by intoxication), and what constitutes intention as to surrounding

circumstances and/or results (the lack of which cannot be replaced by intoxication).65

A

second focus of criticism, for the current law, is the lack of coherence between the treatment

of intoxication and the treatment of other potentially culpable reasons for lacking mens rea

and/or voluntariness. For example, negligence leading to non-intoxicated automatism will

also lead to the construction of liability at T2,66

but such rules are not modelled on

intoxication and do not distinguish between basic and specific intent (allowing for the

60

Reminiscent of the dispute in Brown (1994) 1 AC 212, the question is not ‘do we allow a defence where D is

intoxicated’, the question is ‘does D commit a crime on the basis of her intoxication’? Simester, ‘Intoxication is

never a defence’ (2009) CrimLR 3. 61

DPP v Majewski [1977] 1 A.C. 443. 62

Horder, ‘Sobering up? The Law Commission on criminal intoxication’ (1995) MLR 534. 63

See discussion in Robinson, (n2) 14-17; Husak, ‘Intoxication and culpability’ (2012) CL&Phil 364, 366-8; R.

Williams, ‘Voluntary intoxication – a lost cause?’ (2013) LQR 264, 266-71. 64

Lipman [1970] 1 QB 152. 65

See Heard [2007] EWCA Crim 125, and the discussion of intentional ‘touching’. 66

Quick [1973] QB 910. See discussion in Rumbold & Wasik, ‘Diabetic drivers, hypoglycaemic unawareness,

and automatism’ CrimLR (2011) 863.

17

substitution of any mens rea).67

Negligent insanity (for example, resulting where D fails to

take medication, leading to a lack of mens rea) could be viewed similarly.

Below we outline a number of alternative approaches that seek to make sense (and

potentially reform) the rules on intoxication. Having done so, we will then sketch a preferred

approach, and show how this could be used as a model for the rationalisation of other

inculpatory rules in this category.

There are three main alternative approaches to intoxication in the literature. The first,

exemplified by recent Law Commission recommendations, would maintain a basic claim of

equivalence in line with the current law (criticised above), but would seek to make the

separation of basic and specific (or, to use the language of the Commission, ‘integral’ and

‘non-integral’) more precise and consistent.68

This approach must be rejected for its

continued reliance on flawed and problematic equivalences, as well as other aspects

discussed elsewhere.69

The second alternative is best illustrated by Robinson’s general approach to prior

fault.70

Robinson rejects the language of the equivalence thesis, but his approach (liability for

causing the conditions at T1, for a defence at T2) still requires some mens rea at T1 that can

be constructed upon. Thus, as D lacks mens rea in Category III cases, Robinson needs to

establish some manner of equivalence between D’s intoxication and her missing fault or no

liability can be found. This creates an obvious problem for Robinson’s attempt at a universal

approach to prior fault and leads him (somewhat grudgingly, and with little commitment) to

consider several options. Most interesting is the option of a presumption of mens rea at T1:

justified by its potential for rebuttal by D; and, potentially, by its reclassification as a defence

rather than offence element.71

It is an approach that must be rejected on its own terms, but it

is also a useful illustration of our contention that prior fault should be considered separately

in its four different guises. Essentially, Robinson’s approach is an attempt to force cases

within this category (where D lacks mens rea at T1 and T2) into Category I cases (where D

has mens rea at T1, and Robinson’s approach has most appeal). Where D has mens rea at T1,

67

Mackay, (34) 153-6. 68

Law Commission, Intoxication and the Criminal Law (Law Com No 314, 2009). 69

Child, ‘Drink, drugs and law reform: a review of Law Commission Report No.314’ (2009) CrimLR 7. 70

Robinson, (n2). 71

Ibid 58-63.

18

there is no need for a presumption.72

However, where D lacks mens rea at T1 (as in our

example), any presumption of mens rea must be rejected if we respect the presumption of

innocence and reject the equivalence thesis. This position is not affected by the (equally

objectionable) presumption of mens rea within the current law, or by the potential to re-

classify the presumption as a defence.73

The third alternative is the only one to reject the equivalence thesis completely,

contending that D’s liability should be captured in a new intoxication offence.74

It is therefore

the most appealing, and forms the basis for the preferred approach. A detailed attempt to

design such an offence has recently been put forward by Rebecca Williams.75

Williams

creates a general offence (structured similarly to inchoate liability), in which D is liable for

‘committing the actus reus of offence X [in our example, homicide] while intoxicated’.

Williams’ approach is able to find liability (in line with public policy expectations), and to do

so by explicitly focusing on D’s blameworthy intoxication rather than trying to transform it

into mens rea for a principal offence (in our example, for murder or manslaughter). It

captures the unique aspects of prior fault in this category; labelling and punishing D for what

she has done (causing harm whilst intoxicated) rather than what she has not done (D has not

committed an offence with mens rea).

This final alternative (a separate intoxication offence) offers the most promising

option for reform. However, the approach outlined by Williams will require modification.

This is because, although Williams is correct that her approach accurately labels D (actus

reus plus intoxication), this does not mean that D is accurately or appropriately criminalised.

Under the equivalence thesis, this second question of appropriate criminalisation does not

arise: if intoxication is equivalent to the missing mens rea, then appropriate criminalisation of

the ‘offence with mens rea’ will be equally applicable in the intoxication (equivalent) context.

However, once it is accepted that intoxication is not equivalent to mens rea, then the wrongs

captured by the new offence become quite different and require separate justification: leading

us to question whether actus reus plus intoxication is always sufficiently wrongful to be

criminal?

72

It may be difficult to prove that D had mens rea at T1 where some time has passed, but this is not novel for

the law, and certainly no reason to shift the burden of establishing mens rea. 73

A similar approach is offered by Husak, who would allow for objective recklessness at T1 to construct

liability at T2. Husak, (n63) 371. 74

First articulated by Smith and Williams in the Criminal Law Revision Committee, Offences Against the

Person (1980) 113-4. 75

Williams, (n63).

19

The problem for Williams’ approach is a general one, with every combination of actus

reus and intoxication capturing a new combination of wrongs that are simply assumed (within

her approach) to be deserving of criminal sanction. However, the potential for over-

criminalisation is most obvious in relation to two types of offences where mens rea is central

to the substantive wrong. The first type of offence, partially recognised by Williams, are

inchoate offences or (more accurately) any offence including an ulterior mens rea element.

As the focus of these offences is the mind of D (as opposed to a harmful actus reus) Williams

acknowledges that the ‘actus reus plus intoxication’ offence may not be appropriate.76

She

suggests that a list of statutory exceptions may resolve this. However, such lists are prone to

inaccuracies,77

and her choice not to rule out theft (which includes an element of ulterior

mens rea), is demonstration of exactly that risk:78

the law does not recognise the actus reus of

theft as deserving of criminalisation without D’s ulterior intention to permanently deprive

(even where V suffers the same loss79

), so why should it do so where D is intoxicated? It

may, but this requires separate consideration. The second type of offence to highlight

problems for the Williams approach, building upon the first, is any offence where a mens rea

of intention or knowledge is required: for example, knowledge for complicity; intentional

touching for sexual offences; knowledge that the victim is human for homicide; and so on.80

Here, again, the actus reus of the offence is only deemed to be deserving of criminalisation

where a high level of mens rea is present, and the assumption that actus reus plus intoxication

will be sufficiently blameworthy is on weak footing.81

These two illustrations represent the tip of a critical iceberg, and one that does not

‘vanish’ on recognition that D is being charged with a new intoxication offence.82

D may be

appropriately labelled by Williams’ approach, but the question of appropriate criminalisation

remains unanswered. Some use could be made of a part of her policy not yet remarked upon:

that D will not be liable where a ‘sober and reasonable person’ may have done likewise.

76

Ibid 284. 77

Child, ‘The structure, coherence and limits of inchoate liability: the new ulterior element’ (2013) LS,

discussing the inadequacy of statutory lists used to limit infinite inchoate liability. 78

Williams, (n63) 283. 79

Williams highlights that from ‘the victim’s point of view’ a deprivation is theft (279). This is true, but the

criminal law is concerned with the defendant: where a sober person takes without the intention to permanently

deprive there is no theft (despite the victim’s deprivation), and thus, without a claim that intoxication is

equivalent to such an intention, this does not justify the application of Williams’ offence. 80

I have not included examples where an alternative offence (with the same actus reus) allows for a lesser mens

rea (eg, intention to kill or cause GBH for murder). The examples given are those where intention or knowledge

is required for D’s conduct to be considered criminal at all. 81

This point is used by Horder to defend the current specific/basic intent distinction: Horder, ‘Sobering up? The

Law Commission on criminal intoxication’ (1995) MLR 534, 538-9. 82

Williams, (n63) 283.

20

However, although this is useful to address problematic facts (for example, while intoxicated

D trips on a wire that she would not have seen even if sober), it is insufficient as a tool for

evaluating the wrongfulness of offence actus reus, not least because (as our examples above

illustrate) the law is full of unreasonable conduct that we only see as deserving of

criminalisation where D has a specific mens rea.83

The preferred approach, therefore, attempts to capture the many benefits of the

Williams approach, but to start from the opposite end: identifying and criminalising ‘actus

reus plus intoxication’ only where a case for such criminalisation can be made.84

Core

offences are likely to include causing property damage whilst intoxicated; causing harm

against the person whilst intoxicated; and so on.85

Where the current law criminalises for

basic intent offences despite a lack of mens rea (through the equivalence thesis) and acquits

for specific intent offences despite D’s voluntary intoxication, the preferred approach will

only find liability for the (appropriately labelled) intoxication offence.

The potential for the preferred approach to apply consistently within this category of

prior fault (ie, beyond intoxication) leads to an interesting debate. In the context of negligent

automatism,86

and even negligent insanity,87

it is contended that the preferred approach has

considerable promise. As with voluntary intoxication, rather than working on an inaccurate

and inconsistent model of equivalence in order to find liability for current offences,88

a

discrete offence involving certain harms combined with negligent automatism or negligent

insanity would bring coherence to the law. This could either be achieved within the

intoxication offence (specified harm plus voluntary intoxication or negligent automatism or

negligent insanity), or alongside it as a separate (but consistent) offence. Debate arises,

however, in cases where D’s (non-intoxicated) negligence leads to a lack of mens rea but not

an automatic state (using our example, where D accidentally shoots the gun due to extreme

fatigue rather than intoxication). The question becomes, is the new offence best designed to

target harm caused by extreme negligence (in the sense that it causes complete loss of

83

For example, a reasonable person would not risk sexual contact with minors, and yet the law only criminalises

intentional contact (Sexual Offences Act 2003). Whether it should criminalise intoxicated contact requires,

again, independent consideration. 84

Actus reus plus intoxication, in this context, includes cases where D lacks voluntary control of her body due

to intoxication. 85

Whether these core examples are deserving of criminalisation, and any other examples beyond them, would

be the subject of individual consideration. 86

For example, where D drives when very tired and falls asleep. 87

For example, where D negligently fails to take her medication and loses control. 88

Mackay, (n34); Mitchell, (n34) 63.

21

control) and common negligence (as with intoxication), or are we uncovering a more general

belief that negligently caused harms should be criminalised?89

In either guise, the separation

of liability within a new offence appears to offer the logical way forward.

Category IV: General prior fault blocking defences

The final category of prior fault, as with Category II, focuses on D that completes the actus

reus and mens rea of an offence and is seeking to rely on a defence. However, unlike

Category II cases, where D’s defence at T2 was blocked on the basis of her foresight and

manipulation at T1, Category IV cases involve no specific anticipation from D. For example,

D voluntarily becomes intoxicated. Whilst drunk, D mistakenly believes that V is about

to attack her. D shoots and kills V in self-defence. D is unlikely to have made the mistake

if sober.

The availability of defences, where D is intoxicated, varies considerably within the current

law. For example, where a defence (such as duress) requires reasonable belief and fortitude

then D’s intoxicated mistake will obviously undermine her defence;90

indeed, even where a

subjective test is employed (as with self-defence) D’s intoxicated mistake may still

undermine her defence.91

However, for certain statutory defences, this will not be the case.92

A similar debate has emerged in relation to honest (subjective) belief in self-defence, where

such belief is based on insane or insane-like delusions.93

It should be clear that D’s lack of foresight (of her future offence, or the potential

defence) makes this category of prior fault very different from Category II discussed above.

However, as with Category II, we are again considering the availability of defences (as

opposed to the construction of offences) and so the same principles should be applied.

89

This would represent a considerable extension of the current law, but perhaps one that we see through the

proliferation of negligence offences and the expanding use of prior fault in automatism cases. Rumbold and

Wasik, (n66). 90

Hasan [2005] UKHL 22. 91

Hatton [2005] EWCA Crim 2951. 92

Jaggard v Dickinson [1981] 3 All ER 716. 93

Oye [2013] EWCA Crim 1725, where the Court of Appeal commented obita that an insane delusion could not

be the basis for an honest belief in self-defence.

22

Most interesting are defences (such as self-defence) that will allow D’s defence to be

based upon an unreasonable but honest belief, but not upon an intoxicated mistake. We must

ask whether the general fault displayed by D’s voluntary intoxication is sufficient (and

sufficiently different from other forms of unreasonable belief) that it should undermine her

defence? Our focus is not whether D is trapped in a crisis as it was for Category II cases (D is

mistaken and therefore, in reality, is not trapped). Rather, our focus is on what we want or

expect of D where she thinks she is trapped. As in our example, where D mistakenly believes

she is under attack (or that another is under attack), do we want her to act in defence (in

which case the defence should be allowed) or not (in which case it should be blocked)?

This question leads to three potential ways forward. First, it may be that we want to

block D’s defence because any unreasonable mistake undermines the basis for criminal

defences. Something like this approach is supported by Williams, and would require all

criminal defences to employ a reasonableness standard.94

Secondly, it could be contended

that D’s defence should be allowed, that we would want (or at least excuse) D’s defensive

acts. This approach leads us to consider those defences where an objective standard is

employed, asking whether these should be amended or on what basis defences like self-

defence should be distinguished. It also leads to consideration of the proposed intoxication

offence; whether an intoxicated mistake could form the basis for a defence to this new

offence. Finally, it could be contended that a subjective test should be preferred (for some or

all defences), but that reliance on intoxicated mistakes are so unreasonable that they should

continue to be exempt. This approach, similar to the principled inconsistency discussed when

concluding our Category III discussion, requires more work on why intoxication is different

from other negligent mistakes, leading us to question whether any others (for example,

insane-like delusions) should be similarly exempt.

Clarified in this manner, the question is an appealing one. However, in want of a

settled preference, it is one that will have to await further consideration.

Conclusion

Categorising and grouping issues within the criminal law can be a rewarding process, both to

identify the principles that underlie such groupings (allowing for more effective evaluation),

94

Williams, (n63) 285-6.

23

and to expose internal inconsistencies (requiring justification or change). However, such

categorisation must be undertaken with great care. Indeed, it was the perceived similarity

between the four categories of prior fault discussed in this paper that led to the inappropriate

expansion of the ‘actio libera in causa’ doctrine,95

and commentators such as Robinson

criticising general inconsistencies and proposing general solutions.96

This paper has attempted to identify four distinct categories of prior fault cases:

distinguished as to the inculpatory or exculpatory rules at issue, as well as in relation to the

specific or general character of D’s prior fault. In doing so, it has rejected criticism of

inconsistency between categories, demonstrating that such inconsistency is inevitable and

beneficial, but sought to challenge any inconsistency within categories. At each stage, we

have looked to move the debate forward, proposing alternative or adapted approaches in light

of clarified problems. Each proposal requires further discussion, of course, but it is hoped that

such discussion can now take place more fruitfully within the identified categories.

95

Dimock, (n15) 550-2. 96

Robinson, (n2).