Defences in tort and crime

Abstract

© Cambridge University Press 2014. Tort law and the criminal law are often considered to be profoundly distinct branches of the law. For example, Jules Coleman contends that ‘[t]he differences between torts and the criminal law are so fundamental that the net result of applying one’s understanding of the criminal law to torts is bad philosophy and total confusion’. While this may be something of an exaggeration, there is no doubt that there are many significant differences between tort and crime. Some of these differences have been explored in detail. For example, careful thought has been given to the fact that the criminal law pays far greater attention to mental states than tort law, to the fact that only the criminal law provides for liability for attempts and to the fact that tort law and the criminal law place different emphasis on the importance of retribution and compensation. However, one respect in which tort law and the criminal law part company that has received virtually no scholarly attention concerns defences. Hence, the goal of this chapter is to explore several ways in which the defence regimes of tort law and the criminal law are distinct from each other. Two preliminary points need to be made at the outset about the way in which the examination will proceed. First, the analysis will not be concerned with differences in the fine details between specific criminal law and tort law defences, such as with the different way in which the tort and criminal law versions of the defence of self-defence respond to unreasonable mistakes by the defendant as to the need for defensive force. Rather, this chapter will focus on the more fundamental question of whether major types of criminal law defences are also recognised by tort law and vice versa. The second preliminary point concerns the meaning of the word ‘defence’. Untold confusion has been nourished by the incautious use of that word and it is important, therefore, to be clear about how it will be used in this chapter.