Principles of Imputation
Chapters 3 and 5 each take up a recognized conceptual grouping of doctrines, the definitions of offences and general defences, respectively, show flaws in the way each is conceptualized and suggest refinements to avoid the noted problems. This Chapter has a more difficult task. It attempts to establish that a conceptual grouping of equal importance to the definition of offences and general defences should be recognized: doctrines of imputation.
Typically, an actor is liable for an offence if and only if she satisfies the elements of an offence definition. There exist two kinds of exceptions to this paradigm of equivalence between satisfying an offence definition and criminal liability. An actor escapes liability even though she does satisfy the elements of an offence if she satisfies the conditions of a general defence. This well known group of doctrines is the subject of Chapter 5.
A second, and reverse, exception is what may be called doctrines of imputation. An actor may be liable for an offence even though she does not satisfy the offence elements, if a rule or doctrine imputes the missing element. This conceptual group is as basic and important as general defences, yet the current conceptualization of criminal law essentially ignores its existence. This Chapter describes the doctrines that make up this group and demonstrates their shared operation in imputing a required offence element. It also shows that, beyond the shared operational character, these doctrines share common theories and rationales.
Some writers have suggested that the imposition of liability absent a required element of the offence is illogical and immoral. In Director of Public Prosecutions v. Majewski,1 for example, the defendant argued that it is both illogical and unethical to impute to a defendant a culpable state of mind (for assault) that he in fact did not have (because he was voluntarily intoxicated). The defendant relies upon a passage from Lord Hailsham in Director of Prosecutions v. Morgan:____________________