Law
Defences in Criminal Law
Defences in criminal law refer to legal arguments or justifications used by defendants to avoid liability for their actions. These defences can include self-defense, necessity, duress, insanity, and intoxication, among others. They are crucial in determining whether a defendant is guilty or not guilty of a criminal offense.
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5 Key excerpts on "Defences in Criminal Law"
- Martin Jarrett(Author)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
16 1 6 2 A Definition of Defence 1 Defining Defence On account of the juristic compulsion to define words and the fundamental importance of the concept, it is surprising 1 that a commonly accepted defin- ition cannot be ascribed to ‘defence’. Worse, it is habitually used in a ‘slap- dash’ 2 and ‘sloppy’ 3 way. 4 Robinson 5 and Goudkamp 6 identify, in the context of Anglo-American criminal and tort law, respectively, five different uses for defence. The jurisprudence from international law is equally unhelpful. 7 The lack of a commonly accepted definition of defence gives rise to the need to create one. 8 In law, the task of definition is aided by rules of interpret- ation. 9 This aid, however, is not applicable for present purposes because the task is to define a transjurisdictional concept, 10 as opposed to a legal element 1 Although it is generally acknowledged that the more fundamental a concept, the more diffi- cult it is to find a commonly accepted definition; see Hart, ‘Definition and Theory’, 23. 2 Goudkamp, Tort Law Defences, 64. 3 Campbell, ‘Offence and Defence’, 75. 4 For a list of the various synonyms of defence in international law, see Szurek, ‘Notion of Circumstances Precluding Wrongfulness’, 427 and 432–433. 5 Robinson, ‘Criminal Law Defenses’, 204–232. 6 Goudkamp, Tort Law Defences, 1–5. 7 Crawford, State Responsibility, 275; Szurek, ‘Notion of Circumstances Precluding Wrongfulness’, 427. 8 In the words of John Locke: ‘it is not enough that men have ideas, for which they make these signs stand; but they must also take care to apply their words as near as may be to such ideas as common use has annexed them to’; see Locke, Essay Concerning Human Understanding, Book III, chap. 11, § 11.
eBook - PDFRethinking Self-Defence
The 'Ancient Right's' Rationale Disentangled
- T Markus Funk(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
Note that defence of property is covered in the Criminal Damage Act of 1971 and arrest and the prevention of crime is discussed in § 3 of the Criminal Law Act of 1967, to be read in light of § 76. While similar – and apt to be overlapping, depending on the facts of the case – these are technically different defences. See generally R v Hitchens [2011] EWCA Crim 1626 (ruling that self-defence and the defence of using reasonable force in the prevention of crime under the Criminal Law Act 1967, § 3 were capable of extending to the use of force against an innocent third party 7 Examining the English Law’s Treatment of Self-Defence from a Value-Centric Perspective I. Putting England’s Law of Self-Defence in Context Often referred to as ‘private defence’ or ‘necessary defence,’ the right to self-defence in England is the right to defend oneself against an unjustifiable attack. The law of self-defence, moreover, is one of the general defences that can be raised by ‘a person charged with [an] offence.’ 1 Turning to the burden of proof and persuasion, unlike in the US, a defendant in England need not explicitly rely on self-defence during his trial for the question to go to the jury, so long as sufficient evidence was adduced to raise a prima facie case of self-defence. 2 Once the defendant has adduced such sufficient evidence, the prosecution has the burden of disproving self-defence beyond a reasonable doubt. 3 The law of self-defence in England is now clarified in section 76 of the Criminal Justice and Immigration Act of 2008 (‘2008 Act’). 4 Specifically, the Putting England’s Law of Self-Defence in Context 189 to prevent a crime being committed by someone else); R v Hayes [2011] EWCA Crim 2680 (describing this area as ‘notoriously difficult’). 5 See Criminal Justice and Immigration Act 2008, § 76(8).
eBook - PDFCrime, Reason and History
A Critical Introduction to Criminal Law
- Alan Norrie(Author)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
290 Self-defence operates perfectly plausibly as a negation of criminal conduct, and therefore cancels a guilty act. It therefore follows that an act of mistaken self-defence is a mental mistake with regard to a guilty act, to an actus reus, and can be validly understood as a question of mens rea in terms of the basic penal equation, mens rea plus actus reus equals the definition of the offence. Thus we have a dilemma in the law. On the one hand, we have an argument from ‘legal logic’ that mistaken self-defence relates to mens rea and actus reus in the definition of the offence. That argument is compelling even to those who would combat it since rightful conduct can hardly be said to constitute a guilty act, and then the mens rea point follows. On the other hand, we have a morally substantive claim that self-defence should escape the logical straitjacket of the definition of the offence, and that the honest mistake rule looks morally counter-intuitive. Can we explore this dilemma further to see what it tells us about the criminal law? (iii) The evaluative context The reaction to the mens rea (‘abstracted’, ‘inexorable logic’) argument is to press the claim that the law should be analysed in moral terms. If the analytical legal equations produce morally counter-intuitive results, so much the worse for them. We should start from an ethical analysis of the nature of self-defence and then work back from that to the law. Such an analysis is illuminating but turns out to be problematic. It reveals the degree of fluidity and conflict that underlies, and eventually undermines, the legal position. (a) Self-defence as justification or excuse Let us consider further the argument that self-defence be analysed as justifica- tory in its standard form and excusatory in so far as it involves a mistake.
eBook - PDF- Matthew Dyson(Author)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
For example, it is often thought that justifications can be shared by co-defendants but that excuses cannot. It is unnecessary to explore this issue here. 54 Excessive self-defence is a (partial) criminal law defence in some jurisdictions: see, e.g., Crimes Act 1990 (NSW), s. 421. 55 Limitations of space render it impractical to discuss defences that are available to defendants who proceeded on the basis of a reasonable but mistaken belief that justifying facts existed. Many theorists believe that such defences, when available to defendants who make a reasonable mistake, are excuses: see, e.g., Gardner, Offences and Defences, 108–13; Fletcher, Rethinking Criminal Law, 762–9. Since tort law plainly contains such defences (self-defence is a good illustration: see Ashley v. Chief Constable of Sussex Police [2008] 1 AC 962), comprehensive discussion of whether tort law provides for excuses would require that consideration be given to the proper classification of these defences. I have argued elsewhere that such defences are in fact justifications: Goudkamp, Tort Law Defences, ch. 4. 56 For discussion see A. G. Nadel, ‘Provocation as basis for mitigation of compensatory damages in action for assault and battery’ (1985) 35 ALR 4th 947. 57 Fontin v. Katapodis (1962) 108 CLR 177 (HCA), app’d in Lane v. Holloway [1968] 1 QB 379 (CA); Hoebergen v. Koppens [1974] 2 NZLR 597 (SC); Hurley v. Moore (1993) 112 Nfld & PEIR 40, 50, (1994) 107 DLR (4th) 664, 682 (CA). 58 Consider the apparently inconsistent positions that Lord Denning took on this issue in Lane v. Holloway [1968] 1 QB 379, 387 (CA) and Murphy v. Culhane [1977] QB 94, 98 (CA). defences in tort and crime 221 Provocation does not go to liability. 59 Provocation is not, therefore, a defence, as the word ‘defence’ has been defined for the purposes of this chapter. It is highly unlikely that duress is a tort defence. There is scant case law in this regard. The leading decision is Gilbert v.
eBook - PDF- William Wilson(Author)
- 2002(Publication Date)
- Hart Publishing(Publisher)
17 Such cases illustrate the crucial organisational role played by the defence templates in keeping the defences themselves ‘honest’. Given the obvious potential for abuse in contexts involving agents of the state collective interests are unlikely to be advanced by a general weakening of the immediacy requirement. If this leaves undeniable moral gaps in areas such as domestic violence these can be appropriately plugged by creating discrete defences of impaired rule-following capacity for those who ‘take the law into their own hands’ in the face of will-sapping cumulative abuse. 18 Self-defence no less than duress requires then the ‘one-off’ emer-gency taking place in circumstances where we cannot rely upon the state to protect us and where no threat to the rule of law is posed by the defendant taking unilateral action. 19 Does the same reasoning hold for necessity? It is notable that the American Model Penal Code has no immediacy or imminent risk requirement. Except where the legislative Criminal Defences: Setting Limits to Justifications 297 14 Lavallee v The Queen (1990) 55 CCC (3d) 97at 883. 15 A-G’s Reference (no 2 of 1983) [1984] 1 All ER 988; Fegan [1972] NI 80. 16 Cousins , above n 7. 17 For elaboration see AJ Ashworth, ‘The European Convention and the Criminal Law’ in The Human Rights Act and the Criminal Justice and Regulatory Process (1999) Cambridge Centre for Public Law. 18 For example defences of temporary mental instability. For discussion see S Morse, ‘Diminished Capacity’ in Shute et al (eds), Action and Value in Criminal Law (Clarendon Press, Oxford, 1993), 239. 19 J Horder, ‘The Irrelevance of Motive in Criminal Law’ in J Horder (ed), Oxford Essays in Jurisprudence (Clarendon Press, Oxford, 2000), 174 179–80.
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