Mark Dsouza | University College London (original) (raw)

Papers by Mark Dsouza

Modern Law Review, 2022

When, if ever, do mistaken beliefs render sexual activity non-consensual despite a person's seemi... more When, if ever, do mistaken beliefs render sexual activity non-consensual despite a person's seeming consent? I suggest that existing answers can be improved upon by paying due attention to two things, (1) that valid consent is often given through exercises of sexual autonomy that are, to different extents, unreflective rather than considered; and (2) that a belief can define both the object of consent, and a precondition for it. I propose that where V putatively consents to sexual activity with D, the falseness of a belief that V holds renders the sexual activity non-consensual when it means either that what happened to V fell outside the (consideredly or unreflectively selected) boundaries of the object of V's consent, or that a precondition that V consideredly set for her consent, had not been met.

Northern Ireland Legal Quarterly, 2022

The act/omission distinction is widely thought of as being of foundational importance in the subs... more The act/omission distinction is widely thought of as being of foundational importance in the substantive criminal law of liberal states. While acts can be proper targets for criminal offences, it is thought that we should only exceptionally criminalise omissions. I argue against this piece of criminal law orthodoxy by showing that if we are careful to fairly compare acts and omissions qua targets for criminalisation, then none of the standard arguments in favour of the act/omission distinction convince. In fact, on close examination, there is little reason to think that an omission cannot perform the role played by the conduct element in the structure of a criminal offence, just as well as an act can.

Jurisprudence, 2021

Although there is much to commend in Sarch's Criminally Ignorant: Why the Law Pretends We Know Wh... more Although there is much to commend in Sarch's Criminally Ignorant: Why the Law Pretends We Know What We Don't, in this piece, I invite Sarch to expand on his analysis by considering how English doctrine diverges from the US doctrine he takes as foundational, and raise some doubts by putting pressure on the theory of culpability that motivates his views on how ignorance supplies culpability. In particular, (a) I question his defence of a motive-insensitive theory of culpability, (b) set out some worries with Sarch's strategy of running theories of inculpation and exculpation together, and (c) suggest that he prematurely rejects motive-based explanations of why a person who is wilfully ignorant of an inculpatory proposition when performing the actus reus of a crime is as culpable as another who does the same thing with the requisite knowledge.

Artificial Intelligence and the Law, 2020

*This is NOT the published draft. It is the version that I submitted and that was accepted for pu... more *This is NOT the published draft. It is the version that I submitted and that was accepted for publication subject to the editors' inputs.*
This chapter argues that at least in relation to the substantive law of core criminal offences – the kind that form the foundations of substantive criminal law teaching at universities – these challenges are sometimes overstated. It aims to consider whether the criminal law has the resources to help us identify cases in which the artificial intelligence technology (AIT) seemingly criminal activity should be attributed to a human defendant. The chapter addresses offences with three different types of actus reus stipulations separately, since they raise different issues in the attribution analysis. These are: specific conduct offences, specific consequence offences and state of affairs offences. The set of concerns most frequently voiced are to do with instances in which the AIT is faced with a difficult choice about which criminalised outcome to bring about. There are several different inchoate offences, but once again, they are all composed of actus reus and mens rea elements that have previously been analysed.

Legal Studies (forthcoming March 2021, already available online), 2021

I argue that instead of analysing a criminal offence’s conduct element in terms of acts and omiss... more I argue that instead of analysing a criminal offence’s conduct element in terms of acts and omissions, we should ask whether the defendant has belied a contextually salient expectation as to how she should, or routinely would, conduct herself. Slightly different sets of expectations are salient depending on whether our interest is in questions of criminalisation, or the proper interpretation of existing offences, but the criminal law is normally interested only in conduct-tokens that belie a relevant expectation. Belying such an expectation need not itself suggest culpability, but it does mark out the conduct as remark-able, in the sense of being ‘worthy of remark’.
I argue that this ‘Remark-able Conduct Requirement’ (RCR) analysis helps us narrow the field of conduct-tokens that are normatively appropriate candidates for criminalisation, and when adapted for use in interpreting existing offences it
(a) generates familiar and plausible liability outcomes;
(b) simplifies the application of the law;
(c) offers a principled argument to limit the scope of offences drafted in overly broad terms, by excluding innocuous doings from potential criminal liability; and
(d) suggests ways to make progress on philosophical puzzles about how we should conduct ourselves.
Email me at my ucl.ac.uk address if you would like a copy of the accepted paper.

Cambridge Law Journal, 2020

We use doctrines of identification to explain how corporations may commit criminal offences in th... more We use doctrines of identification to explain how corporations may commit criminal offences in their own right, but current versions thereof have several shortcomings. Here, I suggest that reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible authority, might remedy these shortcomings. Arguments against the resulting expansion of corporate criminal liability are unconvincing, especially when juxtaposed with the criminal law's response to similar arguments made on behalf of natural persons. This may indicate that we should also moderate the criminal law's harshness towards natural persons.

UCL Working Paper Series No.6/2019, 2019

The doctrine of identification is often used to explain how corporations can commit criminal offe... more The doctrine of identification is often used to explain how corporations can commit criminal offences in their own right. Courts identify the natural persons who can be said to personify the corporation, and attribute their conduct and mental states to the corporation. However, current versions of the doctrine of identification suffer from several well-documented shortcomings.
In this paper, I consider whether these shortcomings can be remedied by reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible corporate authority.

UCL Journal of Law and Jurisprudence, 2019

The central features of the English criminal law’s approach to the liability of principal offende... more The central features of the English criminal law’s approach to the liability of principal offender are fairly clear, coherent, and settled. By contrast, the English law of criminal accessorial liability is notoriously lacking in these qualities. In this paper, I
attempt to correct this imbalance by developing a philosophically enriched exegesis (and where appropriate, critique) of the English law on criminal accessorial liability, by reference to the structures of responsibility underpinning English criminal law. I take
the relatively settled state of the English criminal law of principal liability to suggest that it is a good guide to these underlying structures. Therefore, using these rules (as adjusted for the differences in context between liability as a principal and liability as an
accessory) as a template, I evaluate the English law of criminal accessorial liability.

In Taj [2018] EWCA Crim 1743, the Court of Appeal attempted to clarify the law applicable to case... more In Taj [2018] EWCA Crim 1743, the Court of Appeal attempted to clarify the law applicable to cases in which D mistakenly acts in self-defence, and her or his mistake was attributable to psychosis (not amounting to insanity), which in turn was caused by voluntary intoxication. I argue that, unfortunately, it fell short. To provide clarity, the court ought to have recognised the existence of a common law rule withdrawing mistaken self-defence from D who was mistaken because he or she was suffering an abnormality of mental functioning arising from a recognised medical condition.

Cambridge Law Journal, 2016

This is a case note on Collins v Secretary of State [2016] EWHC 33 (Admin), in which the High Cou... more This is a case note on Collins v Secretary of State [2016] EWHC 33 (Admin), in which the High Court interpreted the recently inserted 'Householder Defence' clauses of s76 of the Criminal Justice and Immigration Act 2008. I argue in general support of the High Court's conclusion, while pointing out some flaws in its interpretation of the relevant clauses, and suggesting a better interpretion thereof.

I argue that the criminal law operates in distinct temporal stages, and that concept of culpabili... more I argue that the criminal law operates in distinct temporal stages, and that concept of culpability operates differently at these stages. At its initial stage, the criminal law provides advance conduct guidance to the general public on how to avoid criminality, and at this stage, culpability helps define conduct that, if performed, would prima facie be criminal. After prima facie criminal conduct occurs, the criminal law evaluates the criminality of the agent responsible. At this stage, culpability identifies blameworthy agents. I argue that it does so by reference to the conduct guidance previously offered by the criminal law, and demonstrate that this account of criminal culpability after the act explains the criminality of almost all instances of criminal wrong causation. I argue that it is fair, and not implausibly revisionist, to reject the few instances of hitherto criminal wrong causation that are not explained by this theory of culpability.

Oxford Journal of Legal Studies, Jan 2016

Different jurisdictions disagree on whether a person facing an illegitimate threat is ever requir... more Different jurisdictions disagree on whether a person facing an illegitimate threat is ever required to retreat in the face of it or to submit to it, rather than using force in defence. Those that have attempted to identify the principled position on this issue also disagree about
(a) the philosophical source (if any) of the duty to retreat;
(b) the interests that may privately be defended; and
(c) the point of time at which private force becomes available to a defender.
I address these disputes by suggesting that rules requiring retreat or submission must be limitations on private force that flow from the state's monopoly of legitimate force within its jurisdiction. I argue that these limitations on private force operate at two stages. The first stage limitations restrict 'in-principle' access to private force to cases in which the threat cannot be avoided non-forcefully, and the second stage limitations ensure that the force privately deployed does not exceed the force that the state could itself have legitimately deployed. Next, I examine whether certain interests often taken to be privately defensible ought to be treated as such. Finally, I describe the model of retreat and submission that follows from the ideas canvassed.

Law and Philosophy, May 2013

Even when a person appears to have consented to another’s interference with her interests, we som... more Even when a person appears to have consented to another’s interference with her interests, we sometimes treat this apparent consent as ineffective. This may either be because the law does not permit consent to validate the actions concerned, or because the consent is undermined by the presence of additional factors which render it insufficiently autonomous to be effective. In this paper I propose that the project of categorising and systematically analysing the latter set of cases, would be furthered by recognising (1) that prima facie consent is undermined when the prima facie consenter’s autonomy to choose whether or not to consent has been unfairly constrained, and (2) that theoretical and doctrinal clarity can be promoted by analysing the factors that unfairly constrain autonomy in the criminal law using a framework developed in contract law to determine analogous questions arising in relation to assent to a contract.

If you'd like a copy of this paper, please email me and I will be happy to share a proof.

Books by Mark Dsouza

Although it is often accepted that rationale-based defences to criminal liability can be justific... more Although it is often accepted that rationale-based defences to criminal liability can be justificatory or excusatory, disagreements about how best to conceptualise the categories of justification and excuse have appeared so interminable that some theorists argue that they should be abandoned altogether. This book offers a novel, principled, and intuitively appealing conceptual account of the natures of justifications and excuses, showing how they differ, and why the distinction between them matters.
The monograph breaks new ground by defending a model of rationale-based defences that turns solely on the quality of the defendant's reasoning. This model is shown to generate appealing liability outcomes, advance convincing solutions to questions that have puzzled criminal lawyers for years, and offer suggestions for doctrinal reform that are both normatively sound, and practical. By proposing new ways way to think about defences, this book makes an original contribution to criminal law theory that will be of benefit to academics, practitioners, and persons interested in law reform.

Legal Blog Posts by Mark Dsouza

R v Taj – self-defence, drinking and mental illness

In R v Taj [2018] EWCA Crim 1743, the Court of Appeal (CA) attempts to clarify the rule applicabl... more In R v Taj [2018] EWCA Crim 1743, the Court of Appeal (CA) attempts to clarify the rule applicable to mistaken self-defence, where D’s mistake was attributable to psychosis (not amounting to insanity), which in turn was caused by voluntary intoxication. It falls short, but there is a relatively simple clarification that will make the law internally coherent, and generate appropriate liability outcomes.

A short blog post explaining the effect of the recent Supreme Court decision in Ivey v Genting Ca... more A short blog post explaining the effect of the recent Supreme Court decision in Ivey v Genting Casinos [2017] UKSC 67 on the test for dishonesty in the criminal law.

Book Reviews by Mark Dsouza

James Edwards identifies four principal areas of concern about my book’s central thesis. My book ... more James Edwards identifies four principal areas of concern about my book’s central thesis. My book structures its argument differently. I suspect that revisiting the four issues in the order in which they are tackled in the book would assuage some of Edwards’ concerns. Clarifying misunderstandings about my arguments, and drawing attention to key passages pre-empting objections, should assuage others.