General Defences in Criminal Law

Domestic and Comparative Perspectives

Alan Reed,Michael Bohlander

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317129547
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto penale

The law relating to general defences is one of the most important areas in the criminal law, yet the current state of the law in the United Kingdom reveals significant problems in the adoption of a consistent approach to their doctrinal and theoretical underpinnings, as exemplified by a number of recent developments in legislation and case law. A coherent and joined-up approach is still missing. This volume provides an analysis of the main contentious areas in British law, and proposes ways forward for reform. The collection includes contributions from leading experts across various jurisdictions. Part I examines the law in the United Kingdom, with specialist contributions on Irish and Scottish law. Part II consists of contributions by authors from a number of foreign jurisdictions, all written to a common research grid for maximum comparability, which provide a wider background of how other legal systems treat problems relating to general defences in the context of the criminal law, and which may serve as points of reference for domestic law reform.

Part I

DOI: 10.4324/9781315584263-2

1 How Criminal Defences Work

William Wilson

DOI: 10.4324/9781315584263-3

Introduction

Most communities are constituted by rules of conduct breach of which renders the individual susceptible to censure and/or penalty, depending upon the nature of the relationship and the nature of the rule. Censure, in this context, operates primarily as a communicative tool designed to reinforce normative expectations. Penalty, as in criminal punishment, is either an expression of that censure¹ or, as in sport or regulatory offences, simply a logical embodiment of the imperative nature of the rule. Susceptibility to censure and/or penalty varies, therefore, according to the nature of the relationship. As such it must accurately convey a message which is recognised by all parties as their due both in terms of the expectations it describes and in the manner in which these expectations have been confounded. Unjust or unfair censure generates conflict, which may harm not only the interests of censurer and censuree but also those of third parties who are connected to the relationship. The urge to censure, therefore, must be sensitive to the relationship, which requires consideration to be taken of the context, the capacities, motives and emotions of the individual. This is perhaps most evident in relation to the family. Family life engenders norms embodying expectations as to how each member of the family should behave. Such expectations typically vary according to the role and status of the family member. What is censurable behaviour for offspring will not necessarily be censurable for a sibling. What is censurable behaviour for a 10-year-old will not necessarily be censurable behaviour for a five-year-old. And, of course, what is censurable behaviour for a 15-year-old will not necessarily be censurable behaviour for a parent or spouse.

¹ J Feinberg, ‘The Expressive Function of Punishment’ (1965) 49 Monist (Philosophy of Law) 397.

This relational nature of responsibility has other consequences.² In particular, it sets up a structure for dialogue between affected parties concerning the basis and propriety of censuring incidents, on the one hand and, on the other, for the kind of response that is appropriate for the censuree, be it contrition, righteous indignation, or reasoned explanation. Using the family again as our test bed, children quickly learn to understand not only the rules of behaviour to which they are subject but also the kinds of considerations which affect the responses of parents and siblings to the breach of these rules. At an early stage this may bring an appreciation that accidents and other involuntary behaviours affect the disposition to censure, that deliberate wrongdoing elicits a different response from accidental or involuntary wrongdoing. ‘I didn’t mean it’ is the five-year-old’s trump card, a card which progressively loses power with growing maturity. As normative expectations become more sensitive to age and capacity, distinctions may be drawn between the accidental and the careless, between the careless and the reckless, between the reckless and the deliberate, and so on. As it does so, the initial one-way nature of the communication may give way to a dialogue in which the censuree’s perceptions of fairness and justice may feed back into the process of communication, with associated potential, if not always realised, for resolving conflicts of interest, opinion and perception. At this stage matters pertinent to cognition, such as whether the censuree knew what was expected, or deliberately flouted norms or expectations, or was careless may be enriched by more contextual and personal considerations taking into account, ordinary human dispositions such as indignation, anger, fear, fatigue, and contrition, and ordinary human conditions such as gender, intelligence, physical and mental capacities, and so on.

² For extended discussion of this idea, see RA Duff, Punishment, Communication and Community (OUP 2003) ch 2 s 4.1 and ch 3 s 2.2.

The relationship policed by the criminal law is necessarily different from that existing between family members, clubs, societies, or other communities of interest. In its paradigm form of core crime, it embodies obligations which depend for their authority not upon the existence of the rule itself and their uncritical internalisation, as in sport or games, or the need to foster and maintain the integrity of a close relationship as in families, but upon a generalised acceptance of the truth of the standards concerned. This can sometimes be seen when parents give up their offspring to the police upon discovery of an act of serious wrongdoing. It is not simply because those parents do not care, cannot forgive, or want to teach a lesson. It is because they acknowledge that they do not own the wrong which has been committed and of the authority of the State to take action on behalf of the community affected. People who kill, hurt, steal, and defraud are appropriately made the subject of public condemnation. No other mechanism than punishment can express this condemnation and only the State has the authority to punish on behalf of the affected community.³ For all these reasons susceptibility to censure punishment explains the requirement of mens rea. Quite apart from considerations of utility, or maintaining trust within a relationship, censure is unpleasant, and punishment unpleasant and harmful. It is simply not appropriate to denounce and punish someone who has done wrong unless they are at fault in so doing.⁴ The premise here is that the criminal law has a function to perform over and above declaring wrongs or compensating victims, namely to limit its impact to those who defy the values embodied in criminal norms and thus deserve to have their conduct denounced as a public wrong.⁵

³ G Lamond, ‘What is a Crime?’ (2007) 27 OJ LS 609; A Lee, ‘Public Wrongs and the Criminal Law’ (May 2013) Crim L & Philos <http://link.springer.com/article/10.1007%2Fs11572-013-9231-z>, makes the point that a public wrong is not one which necessarily ‘harms’ the public but rather one which the public, via the State, ought to punish. ⁴ See generally HLA Hart, Punishment and Responsibility (OUP 1968). ⁵ G Lamond (n 3).

Because the State, rather than those directly affected, owns the wrong, however, matters such as context and motivation are inevitably of lesser importance than basic questions of responsibility in deciding questions of desert. At a basic level this can be understood as reflecting the lack of social unanimity concerning the ethical foundations of appropriate action. Modern societies lack the cultural and ideological homogeneity necessary to produce a common notion of right and wrong. People who support the same political party, follow the same religion and football team, enjoy the same books, drink together in the same pubs, and structure their lives around the same moral values may nevertheless disagree even on what the law of murder should comprise. Is abortion/euthanasia a matter of personal choice, of the best interests of all concerned, or inviolable moral obligation.⁶

⁶ R Dworkin, Life’s Dominion (Penguin 1993); W Wilson, Central Issues in Criminal Theory (Hart 2002) ch 2.

The state’s primary role, in this context, therefore, is to specify clearly the rules which govern cases where the balance of reasons for and against action may be misunderstood. Where, as in core crimes such as murder and other crimes of violence, the conduct element embodies a moral proscription, lending an actor’s reasons for violence a defining role in the offence would be self-defeating. By relegating context and motives to the ‘realm of supervening defences’, the clarity of the moral principle—hurting people is wrong—can be sustained. It is a principle which generates its own reason to conform. It may well appear to an individual on the horns of a dilemma that to kill ‘mercifully’ is the best option and it is just because it may so appear that criminal offences and defences are structured in the way they are.⁷ Criminal prohibitions demand obedience even in the face of compelling reasons for disobedience. They have clarity of purpose, which enable us to know what is the ‘right’ thing to do without our having to engage in complex moral inquiry. If the special context or the motive of the actor is capable of providing a countervailing reason not to conform that reason must first be evaluated from the point of view of the proscribing society rather than that of the actor himself or his immediate moral audience. In this way full moral consideration can be given to it.⁸

⁷ See J Raz, The Authority of Law (OUP 1979) ch 1 and generally; see also A Norrie, Punishment Responsibility and Justice (Clarendon Press 2000). ⁸ J Raz, op cit 19–26.

This refusal to allow context and motive a greater say in the construction of criminal liability points out, however, a general systemic problem which no amount of judicial tinkering at the edges can hope to resolve: namely, how best to reconcile the needs of society on the one hand and justice/fairness to the individual on the other where public and private interests and perceptions collide.⁹ In the context of this chapter, this problem can be restated as questioning whether it is possible to generate a basic blueprint for criminal defences by which defences meet for recognition can be judged and the elements of defences already recognised identified and evaluated. These concerns have had the most profound impact in murder. The mandatory sentence makes it morally imperative, rather than simply desirable, for criminal defences effectively to patrol the boundaries between the most heinous killings and those which may be excusable or partially excusable.¹⁰ And yet, as seen in the way the defence of duress has been removed from murder; how central constitutive features in the human condition such as mercy and despair do not figure in the construction of criminal identities; and how the impact of everyday emotions and psychologies have been attenuated by the partial defence of loss of self-control, questions inevitably arise as to whether the present balance is entirely right.

⁹ Lacey, ‘Space, Time and Function: Intersecting Principles of Responsibility Across the Terrain of Criminal Justice’ (2007) 1 Crim L & Philos 233, 235. ¹⁰ See B Mitchell and J Roberts, Exploring the Mandatory Life Sentence for Murder (Hart 2012).

The Role of Criminal Defences in the Construction of Liability

Rather than engage in general moral evaluation of the defendant’s conduct for the purpose of assessing the defendant’s fitness for condemnation and punishment, the criminal justi...