Assessed Coursework
“Justified conduct is correct behaviour which is encouraged or at least tolerated. …An excuse represents a legal conclusion that the conduct is wrong, undesirable, but that criminal liability is inappropriate because some characteristic of the actor vitiates society’s desire to punish him.”[1]
Explain and discuss.
“If hunger were… an excuse for stealing… all kinds of …lawlessness would pass. If homelessness were… a defence to trespass, no man’s house would be safe. [The courts]… must refuse to admit the plea of necessity to the hungry and the homeless and trust that their distress will be relieved by the charitable and the good.”[2]
In English law, there is a steadfast refusal to take the motive of the accused into account; concentrating rather on somewhat strained constructions of intention.[3] Only when a guilty verdict is delivered is motive admitted as a factor in mitigation. It is submitted however, that intentions are not conjured up out of thin air but are a product of a combination of desires and beliefs which must be seen in their social and factual context.
Traditional legal doctrine required that blame attached to the individual alone; otherwise it was feared that the poor and the hungry could legitimately claim that they had acted from a good or justifiable motive. Thus, motive is regarded as all but irrelevant. It is proposed to show that the blameworthiness of a person’s actions is an important element of the criminal law that has hitherto received little attention and that when this is examined, motive is far from irrelevant.
The issues arise clearly in the defences of duress, self defence and if it exists at all, necessity. All of these are essentially claims that the accused was not responsible for his or her motive, which resulted from natural or social circumstances beyond their control.
There is clearly a contradiction between individual responsibility and the social context of wrongdoing. Some kinds of coercion, for example duress, if accepted, will in most cases result in an acquittal. Others, in the form of necessity, will not generally be accepted, for fear of the situation that Lord Denning envisaged above.[4] Additionally, it is clear that defences such as self defence and duress can themselves be seen as types of necessity.
Many of the standard Criminal Law textbooks and the Draft Criminal Code[5] emphasise the twin themes of justification and excuse as the basis for the existence of most defences. However, the word ‘defence’ is often used loosely, both by academics and lawyers.[6] It is suggested that what is meant by ‘defence,’ is rather that the act or state of mind of the accused is in some way excused or justified. For example, the elements of an offence may be present but if the accused was acting under the threat of death or serious injury, either to himself or another, then while it is recognised that a crime has been committed, the actor seeks to deny culpability and thus be excused from the consequences. The law accepts the excuse of duress and effectively allows the ‘defence’ to act as a shield, protecting the defendant from conviction.
Equally, where an accused pleads self defence, provided that the degree of force used is reasonable and other elements of the defence are satisfied, then his conduct is justified; the wrongfulness of the act is negated and the law is effectively saying that there never was a ‘crime,’ the act is approved of[7] and consequently there can be no conviction.
The consequence of raising a successful defence on either of these two foundations, is usually an acquittal and this may lead on a logical analysis, to the conclusion that it is unnecessary to perpetuate the distinction between excuse and justification. Glanville Williams has asserted that the distinction is purely historical and has no place in the modern criminal law. [8] The term ‘justification’ was a recognised defence to a criminal charge and was used in cases where the aim of the law was not frustrated; while ‘excuse’ was the occasion for a Royal pardon and was used in cases where it was not thought proper to punish the perpetrator of the offence.[9]
Since the end of the middle ages, it is difficult to ascribe an exact date,[10] excuses too were recognised by the courts, and thus Professor William’s says there is no longer a need to distinguish between the two concepts.[11]
Some situations however, appear to offer good reasons for preserving the distinction. One key issue in this respect, centres on crimes involving aiding and abetting. If the defendant’s act is justified, it is deemed lawful, society approves and supports the action and therefore a person who aids or abets that act cannot be held criminally liable; since it is not an offence to assist with lawful enterprise. Conversely, if the act is merely excused because although the court recognise a crime has been committed, it is felt that in the circumstances the defendant should not incur a criminal sanction;[12] it may still be the case that an assistant act had no reasonable excuse for so doing and should still be subjected to the full force of the criminal law.[13]
“To allow a defence to crime is not to express approval of the action, …but only to declare that it does not merit… punishment.”[14]
The defence of duress recognises that there are circumstances, such as in response to a threat of serious injury or death, where a person should be excused from criminal liability because society is able to sympathise and understand the action. If a court looks for justification alone the defence might fail,[15] where under excuse it would perhaps have succeeded. Cases of duress invariably involve people having to make onerous choices which will inevitably result in the law being broken. This may be unfortunate but even as far back as 1879,[16] it was said that defences should mirror society and that there would always be situations where the law could legitimately be broken.[17]
In Lynch,[18] the defendant stood to be punished just as severely as the main perpetrators and his defence was that he had no choice but to do what he did. His actions were perhaps undesirable but his predicament invokes some sympathy. “There, but for the grace of God, go I.” The House of Lords questioned whether under such circumstances, “…unless [someone] does what he is told to do, is the law to pay no heed to the miserable, agonising plight of such a person?”[19] Lynch’s plight may well invoke our sympathy, however is it possible to actually approve of his actions?[20]
“In all human institutions, a smaller evil is allowed, to procure a greater good.”[21]
It was suggested above that both self defence and duress could be seen as forms of necessity. However, a particular act is never necessary in the sense that there is literally no option; some choice is always present, even though one of the alternatives may be to meet with one’s own death. Necessity involves making the choice between the lesser of two evils[22] in order to achieve the greater good.[23] The letter of the law has to be broken, which ever choice is made.
The general proposition is that necessity is not a general defence but is recognised within the definitions of some particular offences with phrases such as, ‘necessary to save life’[24] or ‘necessary in a democratic society’[25] and similarly, the term ‘without lawful excuse’[26] implies that with lawful excuse, the action was necessary.
A general defence of necessity[27] was rejected by the Law Commission on the grounds that it was undesirable to expand a doctrine which was an expression of the philosophy of utilitarianism.[28] It is suggested though, that utilitarianism does not hold sway over the general populace and even those who hold strong utilitarian views are rarely bound by them in all respects and will in certain circumstances allow stronger feelings of morality to prevail. For example in respect of the right to life, where the sanctity of human life is regarded by most as a natural right and unjustified killing is regarded as absolutely wrong.
Clearly for necessity to succeed as a defence in cases of homicide, it would need to be given a narrow scope and be subjected to careful scrutiny but there is no rational reason for disallowing it completely.
A Common example of necessity involves two climbers falling to their certain death; one cuts the rope in order to save himself thus allowing the other to die. It is also said that the harm prevented must be greater than, or at least equal to, the harm done. e.g. in this case one death occurs instead of two. These examples involve defensive action by the defendant but what about aggressive action that results in harm greater than that which would otherwise have occurred? For example, D is driving along a narrow road with a sheer drop to one side. Suddenly, in the road, there are two staggering drunks and D’s brakes fail. He is faced with the choice of mowing the drunks down or plunging to his certain death over the cliff.[29] What should D do?
This situation would almost certainly come under the defence of duress of circumstances,[30] which can be viewed as a limited recognition of necessity. However D’s action will be seen as an excuse rather than a justification, with no guarantee of an acquittal. Some argue that this does not matter given that his actions will be considered in mitigation. This however ignores the fact that the defendant will go through a period of terrible uncertainty and his fate is in the hands of judicial discretion when it comes to sentencing. Provided of course that the defendant is not charged with murder, where the sentence after a guilty verdict is the mandatory one of life!
Moreover, even if the defendant is indicted on something less than murder, should a person who has acted in a manner that, on balance, ought to be regarded as blameless, be saddled with the stigma of a conviction even if it results in an absolute discharge. “A professional man like a doctor wishes to comply with the law. It is the conviction, not a fine, that he particularly wants to avoid”.[31]
English law commonly requires the defendant to act with the Sainthood of the reasonable man in the calm of the court room.[32] By classifying duress as an excuse, it is the actor’s actions that are examined[33] and even though he or she has been placed in a position against their will, they are forced to act as heroes.[34] Paradoxically, the law regarding mistake in self defence allows for a subjective test.[35]
Whatever our ‘gut reactions’, should we acquit simply because other men of reasonable firmness would have behaved no better? This issue faced the Privy Council in Abbot.[36] In Lynch, the defendant had only driven the getaway car, whereas Abbot had actually wielded a weapon;[37] the majority said that to acquit would give, “a charter to terrorists, gang leaders and kidnappers”. The minority however questioned, “how can we punish someone for falling short of sainthood… ?”
When deciding Abbot’s fate, the court had to choose between the inflicting of pain on the person who behaved ‘less than heroically’ under duress and the inflicting of pain on his innocent victims. All duress cases are similar to Abbot, in that the defendant is faced with terrible pressures. “The criminal law should not be applied as if it were a blueprint for saintliness but rather in a manner in which it can be obeyed by the reasonable man”.[38]
Because of this, the Court of Appeal have said that justificatory elements cannot properly be regarded as defences in the way in which the term is commonly used.[39] Instead they are matters which the prosecution must disprove as an essential part of their case before a guilty verdict is possible.
In the definition of murder and indeed in other offences against the person, the words ‘unlawful’ or ‘unlawfully’ appear. This indicates that if an element of justification is proved to exist, then no offence has been committed; it is therefore axiomatic that the ‘justification’ goes to make up an element of the actus reus of such offences.[40]
The defendant does have an exceptional evidential burden in relation to his ‘defence’ and therefore to the actus reus of the offence, however, if he adduces some material, however weak, to satisfy this burden, it is then for the prosecution to disprove this by the usual standard of proof expected in a criminal trial.[41]
As a basic proposition it is suggested that criminal liability ought only to ensue when a truly blameworthy actor causes a genuinely prohibited harm and that a court must examine both the act and the actor’s motive in the context of all the surrounding social circumstances. The more harm that is caused may be an indication that the actor is more blameworthy, however, as stated above, motive is far from irrelevant.
People are not blamed for who they are but for what they have done. An assessment of blame must include considerations of how and why the defendant got themselves into the situation wherein they acted as they did; for example by examining his or her economic and social circumstances and in the case of a battered woman or an abused child,[42] whether they have the personal or practical resources to escape.
On the face of it, it is difficult to see how the actions of Sara Thornton,[43] Kiranjit Alhuwalia[44] and other victims of ‘Battered Women’s Syndrome,’ were not justified in their conduct and able to plead self defence. The courts have taken the view that the actions of these women may be excused, but that they do remain culpable for a crime. This is particularly harsh, especially in view of the non-availability of the defence of duress in relation to murder.[45] If we were to analyse these cases in terms of blame and harm, a more just situation may result. Yes, they harmed their ‘victims’ but if their conduct is viewed by the tribunal of fact as blameless or at least less blameworthy, then criminal liability need not be imposed.
It is conceded that there are degrees of blameworthiness which will have an effect on the way offences are structured and which in turn may be the cause of further problems with regard to assessing appropriate levels of blame. It is nonetheless submitted that careful consideration of these will lead to a desirable position of preciseness and clarity that is markedly missing in this area of criminal defences at present.
The dichotomy between a subjective and objective approach to a defendant’s state of mind, which leads Paul Robinson to expound that “…acts are justified; actors are excused,”[46] together with the not inconsiderable confusion that surrounds the distinction between justification and excuse, leads at times to irrational decision making. It seems that a more desirable way to proceed would be to embrace the twin themes of necessity and blameworthiness instead. Not least of all because this would better ensure justice for the defendant[47] and clarity for lawyers, academics and society as a whole.
BIBLIOGRAPHY
Bloy, D. & Parry, P. Principles of Criminal Law 3rd Ed. 1997 London: Cavendish
Brandt, R. B. Morality, Utilitarianism and Rights 1992 Cambridge: Cambridge University Press
Card, R. Criminal Law 13th Ed. 1995 London: Butterworths
Clarkson, C. M. V. & Keating, H. M. Criminal Law: Text and Materials 3rd Ed. 1994 London: Sweet & Maxwell
Dine, J. & Gobert, J. Cases & Materials on Criminal Law London: Blackstone
Elliot, C. & Quinn, F. Criminal Law 1996 Harlow: Longman
Elliot, C. & Quinn, F. English Legal System 1996 Harlow: Longman
Grigg-Spall, I. & Ireland, P. The Critical Lawyers Handbook 1992 London: Pluto
Hall, Jerome. General Principles of Criminal Law 2 ed. 1960
Kadish & Paulsen, Criminal Law and its Processes, 2nd ed. 544
Keenan, D. English Law 9th Ed. 1991 London: Pitman
Murphy, P. Murphy on Evidence 6th Ed. 1997 London: Blackstone
Smith, J. C. Justification and Excuse in the Criminal Law The Hamlyn Lectures, The Hamlyn Trust, 1989 London: Stevens & Sons
Williams, G. Criminal Law: 2nd Ed. 1961
Williams, G. Textbook of Criminal Law 1978 London: Stevens
Journals/Articles
Kadish, S. H. Excusing Crime (1987) 75 Cal. L. Rev. 257
Robinson, P. Criminal Law Defences: A Systematic Analysis (1982) 82 Col. LR 199
Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law 97 Harv. L Rev 625 (1984)
Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal
Williams, G. The Theory of Excuses (1982) Crim. LR 732
Reports
Law Commission, Consent and Offences Against the Person (1994) Law Comm. Consultation Paper No. 134
Law Commission, Codification of the Criminal Law: A Report to the Law Commission. Law Comm. Consultation Paper No. 143
Law Commission, Published Working Paper No. 55
Law Commission, Criminal Law: Report on Defences of General Application. Law Comm. No. 83 (1977) Pt. iv
Table of Legislation
Criminal Damage Act 1971
Road Traffic Act 1988
Human Rights Act 1998
Table of Cases
Abbot v. The Queen [1976] 3 All ER 140 PC
DPP v. Smith [1961] AC 290
Hyam v. DPP [1975] AC 476
London Borough of Southwark v. Williams [1971] 2 All ER 175
Lynch v Director of Public Prosecutions of Northern Ireland [1975] 1 All ER 913
Perka et al v. The Queen (1984) 13 DLR (4th) 1
Re F [1990] 2 AC 1
Re T [1993] Fam 95
R v. Abraham [1973] 3 All ER 694
R v. Alhuwalia (1993) 96 Crim. App. R. 133
R v. Brown [1994] AC 212
R v. Dudley & Stephens 14 QBD 273 (1884)
R v. Finch and Jardine, CCC October 12-19 1982 Unreported
R v. Gotts [1992] 2 AC 412
R v. Graham (1982) 74 Crim. App. R. 235
R v. Hancock & Shankland [1986] AC 455
R v. Howe & Bannister [1987] AC 417
R v. Kimber [1983] 3 All ER 316
R v. Moloney [1985] AC 905,
R v. Nedrick [1986] 3 All ER 1 CA
R v. Thornton [1992] 1 All ER 316
R v. Wheeler [1967] 3 All ER 829
R v. Willer [1986] Crim. App. R 225
Williams (Gladstone) (1984) 78 Cr. App. R.
Woolmington v. DPP [1935] AC 1
[1] Robinson, P. Criminal Law Defences: A Systematic Analysis (1982) 82 Col. LR 199
[2] London Borough of Southwark v. Williams [1971] 2 All ER 175 per Lord Denning
[3] DPP v. Smith [1961] AC 290, Hyam v. DPP [1975] AC 476, R v. Moloney [1985] AC 905, R v. Hancock & Shankland [1986] AC 455 and R v. Nedrick [1986] 3 All ER 1 CA
[4] London Borough of Southwark v. Williams [1971] 2 All ER 175 per Lord Denning
[5] Codification of the Criminal Law: A Report to the Law Commission. Law Comm. Paper No. 143
[6] e.g. R v. Howe & Bannister [1987] AC 417 @ 453 per Lord Mackay
[7] Williams, G. The Theory of Excuses, 1982 Crim. LR 732 @ 735
[8] Williams, G. Textbook of Criminal Law 1978
[9] Ibid p. 39
[10] Ibid
[11] forfeiture abolished – 1828. Smith, J. C. Justification and Excuse in the Criminal Law p. 7
[12] Williams, G., The Theory of Excuses, 1982 Criminal Law Review 732 @ 733
[13] Smith, J. C. Justification and Excuse in the Criminal Law p.27
[14]Ibid
[15] R v. Howe and Bannister [1987] AC 417
[16] Draft Criminal Code of 1879 per Stephen J
[17] Smith, J. C. Justification and Excuse in the Criminal Law p. 3 – 4
[18] Lynch v Director of Public Prosecutions of Northern Ireland [1975] 1 All ER 913
[19] Ibid @ 917
[20] Fletcher, G. P. Rethinking Criminal Law, chapter 10
[21] Oliver Goldsmith, The Vicar of Wakefield in Williams, G. Textbook of Criminal Law 1978 London: Stevens
[22] Re F [1990] 2 AC 1
[23] Perka et al v. The Queen (1984) 13 DLR (4th) 1 per Dixon J
[24] Road Traffic Act 1988
[25] Human Rights Act 1998
[26] Criminal Damage Act 1971
[27] Law Commission Working Party Working Paper No. 55
[28] Law Commission, Criminal Law: Report on Defences of General Application. Law Comm. No. 83 (1977) Pt. iv
[29] Kadish & Paulsen, Criminal Law and its Processes, 2nd ed. 544
[30] R v. Willer [1986] Crim. App. R 225
[31] Williams, G. Textbook of Criminal Law 1978 p. 556
[32] per Lord Morris of Borth-y-Gest [1975] AC @670
[33] R v. Graham (1982) 74 Crim. App. R. 235
[34] R v. Howe & Bannister [1987] AC 417
[35] Williams (Gladstone) (1984) 78 Cr. App. R.
[36] Abbot v. The Queen [1976] 3 All ER 140 PC
[37]Ibid @ 149
[38] Goliath 1972 (3) SA 1 (AD)
[39] R v. Wheeler [1967] 3 All ER 829 @ 830 and R v. Abraham [1973] 3 All ER 694 @ 696
[40] Williams, G. Textbook of Criminal Law 1978 p.458 & Smith, J. C. Justification and Excuse in the Criminal Law p. 31
[41] Woolmington v. DPP [1935] AC 1
[42] R v. Gotts [1992] 2 AC 412
[43] R v. Thornton [1992] 1 All ER 316
[44] R v. Alhuwalia (1993) 96 Crim. App. R. 133
[45] R v. Howe & Bannister [1987] AC 417
[46] Robinson, P., Criminal Law Defences: A Systematic Analysis, 82 Col. LR 199 @ 229 (1982)
[47] see R v. Howe & Bannister [1987] AC 417
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