Individualised Standards

The criminal law sets standards. These standards often account for human differences. For example, what counts as ‘reasonable force’ in self-defence differs for adults versus children. Courts and commentators often imply that we face a single question of whether a standard should account for a given attribute. I claim that we should distinguish two questions. Firstly, whether a standard itself is relativised, raised or lowered, to account for an attribute. Secondly, whether an attribute is contextually relevant to whether the defendant met a (perhaps non-relativised) standard. I illustrate the importance of this distinction with examples from across the criminal law: self-defence, loss of control, sexual offences, and driving offences.