6 Key excerpts on "Defences in Criminal Law"

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  eBook - ePub

  Criminal Law for Criminologists

  Principles and Theory in Criminal Justice

  • Noel Cross(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  5 by looking at Defences in Criminal Law. This chapter considers the range of general criminal defences in the law and how they work, as well as their context in criminal justice. In the criminal justice section of the chapter, the discussion will examine the links between the role and aims of Defences in Criminal Law and the role and aims of sentencing and punishment in criminal justice. The focus here will be on how criminal defences and criminal punishment both make decisions based on perceived levels of individual responsibility for criminal behaviour in varying social situations.

  Criminal defences: the law

  Making sense of criminal defences

  Defences are ways in which people can avoid criminal liability, even though they have the actus reus and mens rea for the offence with which they have been charged. There are different types of defence in criminal law. Some are specific to certain offences (such as murder – see Chapter 7 ’s discussion of voluntary manslaughter for more details), but this chapter deals with general defences. The legal team for the defence has to raise evidence that a particular criminal defence applies in each case. Then, for most of the common law defences discussed in this chapter, the prosecution has to prove beyond reasonable doubt that the defence does not apply; otherwise, the defendant has to be acquitted. D must know the facts which justify them being able to use the defence at the time of the crime which they claim is covered by the defence; otherwise, they cannot use it (Dadson (1850) 4 Cox CC 350).

  General defences are sometimes split up as either excusatory (based on an excuse or internal characteristic which is special to D) or justificatory (based on an external factor or situation which D has to face, which makes D behave in a way for which criminal law does not blame them) (e.g. Fletcher 1978; Wilson 2017: 196–7). However, there is considerable overlap between internal and external requirements across different defences, so this classification is not used in the discussion that follows.

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  International Criminal Law

  • Ilias Bantekas, Susan Nash(Authors)
  • 2009(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Chapter 3 Defences in international criminal law

  3.1 THEORETICAL UNDERPINNINGS OF CRIMINAL DEFENCES

  The concept of ‘defence’ in international criminal law is neither self-evident, nor does it clearly possess an autonomous meaning. Instead, it derives its legal significance as a result of its transplantation from domestic criminal justice systems through the appropriate processes of international law. Nonetheless, its definition, elaboration, evolution or application do not depend on the relevant processes of any single criminal justice system–nor combinations thereof–although these may have persuasive value. This is even more so in the context of a self-contained, highly elaborate and sophisticated legal system, such as the International Criminal Court (ICC), where reliance on domestic rules is the exception–or at least, a judicial act of last resort–rather than the norm.1 Despite these observations, however, the fact remains that the underlying theoretical underpinnings of the concept of ‘defences’ is premised on well established notions of criminal law, originating from both the common law and the civil law traditions. Despite the elaborate character of the ICC Statute, its drafters have been wise in detecting the inadequacy of the fledgling international criminal justice system, thus necessitating recourse to national legal concepts and constructs. This is well evident as far as defences are concerned.2

  In its most simple sense, a defence represents a claim submitted by the accused by which he or she seeks to be acquitted of a criminal charge. The concept of defences is broad, and this may encompass a submission that the prosecution has not proved its case. Since a criminal offence is constituted through the existence of two cumulative elements, a physical act (actus reus) and a requisite mental element (mens rea), the accused would succeed with a claim of defence by disproving or negating either the material or the mental element of the offence charged. Domestic criminal law systems generally distinguish between defences that may be raised against any criminal offence (so called general defences), and those that can only be invoked against particular crimes (so called special defences).3 Another poignant distinction is that between substantive and procedural defences. The former refer to the merits, as presented by the prosecutor, while the latter are used to demonstrate that certain criminal procedure rules have been violated to the detriment of the accused, with the consequence that the trial cannot proceed to its merits. This distinction is not always clear cut, but one may point to the following often claimed procedural defences: abuse of process,4 ne bis in idem,5 nullum crimen nulla poena sine lege scripta,6 passing of statute of limitations,7 retroactivity of criminal law, although these are not typically classified as defences in domestic criminal laws.8

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  Beginning Criminal Law

  • Claudia Carr, Maureen Johnson(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Chapter 6 Defences — duress, necessity, self defence, mistake and intoxication

  Learning Objectives

  By the end of the chapter you should be able to:

  • Understand the concept of criminal defences in English law
  • Be aware of the difference between excusatory and jusificatory defences and the different rational behind each
  • Appreciate the basic workings of the general defences of duress, necessity, self defence, mistake and intoxication
  • Be able to discuss the problems which arise around these defences and the common law which has arisen around them

  Introduction

  It can be seen from the diagram below that the issue of a defence is crucial in criminal law. If a defendant successfully pleads a defence, he is not guilty of the crime, in spite of the fact that he performed the requisite actus reus with the requisite mens rea .

  Justificatory or Excusatory?

  A criminal defence can be either justificatory or excusatory . If a defence is justified, it means that although the mens rea and actus reus elements of the offence are present, the person was justified in acting as they did in those circumstances and their actions will not consitute a criminal offence. This leads to an acquittal for the accused person, and, as no crime as been committed, to an acquittal for anyone who might have also been charged, for instance with aiding or abetting the offence. Self defence is a justificatory defence.

  An excusatory defence is one which will still acquit the defendant, but for a different reason. The defendant acknowledges he has committed the requisite actus reus with the required mens rea

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  Criminal Responsibility and Partial Excuses

  • George Mousourakis(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  5 An offence cannot be committed unless all the explicit and implicit conditions are met. The licence approach, on the other hand, treats a justification such as self-defence as providing a licence or liberty to commit a criminal offence. From this point of view, the person who kills another in self-defence commits an offence, but the commission of that offence is considered, in the circumstances, permissible.

  A justification-based defence may arise where the accused have acted in order to prevent the commission of an offence, to ward off an unlawful attack against himself or another, to effect a lawful arrest or to protect his or another’s property. In English law, the Criminal Law Act 1967 regulates these defences, previously governed by common law rules.6 Section 3 of the Act provides

  (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

  (2) Subsection (1) above shall replace the rules of common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

  It is recognised that, as regards self-defence, defence of others and defence of property, the common law defence survives but only to the extent that it is not incompatible with the statutory defence7 Under both the common law and s. 3, for such a defence to succeed it is required that the force used was reasonable in the circumstances as they existed or as the accused believed them to be. It is accepted that a person will be entitled to the defence where he honestly believed that he was under attack, irrespective of whether such a belief was reasonable or not.8 If the accused honestly believed that he was being attacked, or about to be attacked, even though that was not in fact the case, the jury will be invited to consider whether his use of force was proportionate to the threat which the accused believed to be created by the attack under which he believed himself to be.9 If, taking into account all the circumstances of the case, the jury concludes that the accused used too much force, his plea of self-defence will fail. The same will be the case if the accused did not know or believe that circumstances existed which would justify his use of force, irrespective of whether those circumstances actually existed or not.10 When a justification-based defence is raised the burden is on the prosecution to disprove that defence beyond reasonable doubt.11

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  French Criminal Law

  • Catherine Elliott(Author)
  • 2001(Publication Date)
  • Willan

    (Publisher)

  7

  Defences

  Introduction

  In the new Criminal Code the defences are laid down in articles 122–1 to 122–8. French academic writers draw a distinction between objective defences (sometimes called justifications) and subjective defences (sometimes called excuses), though this distinction is not expressly referred to by the Code. Objective defences are concerned with the surrounding circumstances in which the offence was committed rather than the defendant him or herself. They provide a justification for the criminal conduct which ceases to be viewed as anti social.1 Under the old Code, articles 327 and 3282 went as far as to say that when such a defence applied, no offence existed at all. The new Code does not go this far, simply stating that the accused will not be liable for the offence. There are four objective defences: order of law, order of a legitimate authority, legitimate defence and necessity. Subjective defences are those which are directly linked to the defendant. There are four subjective defences which remove the liability of the individual:3 mental illness, the defence of being a minor, constraint and mistake of law. The objective defences will be considered, followed by the subjective defences.

  Objective defences

  Order of law

  Where a person appears to have committed an offence, they may have a defence if their conduct was authorised by another piece of legislation. The Criminal Code states in the first paragraph of article 122-4:

  A person is not criminally liable who carries out an act ordered or authorised by legislative or regulatory provisions.4

  This is clearer than article 372 of the old Code and gives express approval to the case law on the subject. The old article had referred to there being neither a serious or major crime when the conduct was authorised by the law, but made no reference to minor offences. The case law had accepted that the defence also applied to minor offences, an approach which has been followed by the new Code as it broadly states that no criminal liability will be incurred. The old Code referred to acts ordered by the law, but made no reference to the situation where the act was simply permitted by the law. Again, the case law had taken the view that this was also covered by the defence and this approach is adopted by the new Code, which refers both to the conduct being ordered and authorised by the law.

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  The Little Book of Market Manipulation

  An Essential Guide to the Law

  • Durston, Gregory J., McKeon, Ailsa(Authors)
  • 2020(Publication Date)
  • Waterside Press

    (Publisher)

  Chapter 5

  Criminal Defences and Punishment

  Introduction

  Even if the essential elements of one of the offences in Part 7 of the FSA 2012 are made out, an acquittal may yet be warranted by virtue of a defence. This chapter focusses on the crafted defences contained within Part 7, which are largely designed to prevent criminalisation of long-standing commercial practices considered legitimate and essential for the proper functioning of markets.

  It bears noting that for each of the defences discussed, the legislation states that ‘it is a defence for the person charged … to show’ (or similar). Prima facie this appears to place a legal burden on the defendant to prove them, albeit only on the balance of probabilities.1 However, it seems more likely given the gravity of the offences (as reinforced by the penalties, below) that the accused is faced with only an evidential burden. The argument to this effect is based on the jurisprudence on the European Convention of Human Rights (ECHR) to the effect that a substantive legal burden is contrary to the right of an accused to a fair trial, and specifically the presumption of innocence.2 Section 3 of the Human Rights Act 1998 then requires that the legal burden be ‘read down’, so that it becomes an evidential burden. This requires the accused simply to ensure the defence is raised on the evidence, from whichever party that derives. It is for the prosecution then to disprove the elements of the defence beyond reasonable doubt.3

  The Statutory Defences

  Section 89(3)

  When it comes to prosecutions for making misleading statements under section 89(1) FSA 2012, section 89(3) provides that it will be a defence for the accused to ‘show’ that the statement was made in conformity with: (a) price stabilising rules; (b) control of information rules; or (c) the relevant EU provisions regarding exemptions for buy-back programmes or the stabilisation of financial instruments. These highly technical and specialist defences have been carried forward from section 397 FSMA, and refer to longstanding commercial practices. Examples may include the repurchasing of shares by the company that issued them as part of, for example, employee share option programmes, and the purchase of securities by an investment firm in the context of a significant distribution of those securities, to support their price for a predetermined period of time. As was noted in MAR (albeit in a regulatory context), these are considered legitimate for economic reasons.4

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