Defense In Criminal Law Research Articles

Revisiting Defence of Claim of Right in Nigerian Criminal Law through Elimuya v. Police

The defence of bonafide claim of right under Nigerian criminal law is an important menu in the consideration of the defences open to a defendant in a criminal trial. In Charge No MAB/43c/2020 Commissioner of Police v. Chief Paul Idima Obi Elimuya the defence came up for consideration before the learned trial Senior Magistrate Grade 1, Edema Doris (Mrs.) sitting at the Magistrates’ Court, Abbi in Delta State, Nigeria. Because of the intricate nature of the defence and the manner in which it was considered in the above mentioned charge, this study is actuated towards revisiting the defence under the Nigerian criminal procedure law and determine whether given the factual circumstances in which the defence arose, the trial court was in the right footing in rejecting the defence as made during the trial proceedings in Elimuya’s case. This study would consider the forgoing issue in relation to the appeal which the defendant later took out against the judgment of the learned trial Magistrate to the High Court of Justice, Kwale Delta State, Nigeria. This study uses the doctrinal method relying on judicial decisions and other relevant statutory instruments in the area of the law under consideration. It uses the locus classicus on the subject area of the law in Nigeria (Nwakire v State) to interrogate both the facts yielded in Elimuya v Police and the judgment delivered by the trial court on 15th October, 2022. As this study is essentially an academic exercise, the aim is to highlight the importance of the defence in criminal procedure law, demonstrating the circumstances under which it is to be raised and upheld and the controversies surrounding its application under Nigerian law. The study finds that the facts in Elimuya v Police were on all fours with the circumstances under which the defence ought to have been upheld and the refusal of the learned trial Magistrate in upholding same led to miscarriage of justice and to the appeal. The study therefore recommends that whenever the question whether the defence of claim of right is applicable during a trial, the trial court and indeed an appellant court should look out for the essential elements of the defence as outlined in this study.

The necessity defence in (the Swiss) climate protest cases: Democratic contestation in the age of climate activism

AbstractThe transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case‐law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting a priori climate necessity claims.

The Trafficking Defence in Criminal Law: Nexus and Compulsion

The United Kingdom has accepted international obligations under the Palermo Protocol, the Council of Europe Trafficking Convention, and the EU Trafficking Directive, in relation to the non-prosecution and non-punishment of victims of trafficking for offences they commit which are linked to their trafficking. The obligations are given effect by the Crown Prosecution Service (CPS) discretion not to prosecute, the abuse of process jurisdiction, the common law defence of duress, and the statutory defences under s 45 Modern Slavery Act 2015. In relation to adult victims of trafficking, in each case the question arises of whether they were compelled to commit the offence with which they are charged. This article shows how the English & Welsh courts and the CPS have had insufficient regard to the United Kingdom's international obligations in interpreting ‘compulsion’, and that improvements are necessary to prevent breaches of the United Kingdom's obligations and the re-traumatisation of victims of trafficking.

Tindak Pidana Pembunuhan Karena Membela Diri Perspektif Hukum Pidana Islam dan Hukum Pidana Nasional

The crime of murder is a legal event that is forbidden in Islamic law. In criminal law in Indonesia it is regulated in Article 340 of the Criminal Code. However, there are legal consequences if a person commits a criminal act of forced murder because in self-defense one's efforts are to defend oneself against other people's criminal attacks in order to protect life, honor and property, namely by defending oneself when a person is attacked or deprived of his rights. This research is a library research, the materials and data obtained from the library and various other descriptions that are relevant to the problem of the writing topic. The results of the study are that there are similarities and differences in the terms of forced defense in Islamic criminal law and positive law. The equation for these conditions is the protected object (life, honor and property of oneself and others). The fundamental difference is that it exceeds the permissible defense limit. If in positive law it is permissible to go beyond the limits of forced defense on condition that there must be a cause for great mental disturbance (Article 49 paragraph 2) which is casuistic in nature and determined by a psychiatrist. Whereas the view of Islamic Criminal Law in carrying out acts of defense may not exceed the specified limit, if that happens then the excess must be accounted for by the person who committed the act.

Casting a Constitutional Light on the Cultural Defence in South African Criminal Law

Abstract South Africa’s criminal courts have often dealt with cases where accused who committed culturally motivated crimes tried to escape criminal liability through a so-called “cultural defence”, a defence that does not currently exist in South African criminal law. However, most of the case law dealing with this matter predates the Constitution of the Republic of South Africa, 1996. Consequently, the Constitution’s cultural and religious freedom rights can be used to justify the formal recognition of a cultural defence in South Africa’s criminal law. Simultaneously, the Constitution contains limitation clauses that could counteract such a step. This article evaluates these contentious arguments and concludes that the conflict between the common law and African customary law in South Africa’s criminal law can be resolved by aligning the indigenous beliefs and customs in African customary law to the values underpinning the Constitution.

KIDNAPPING BY DECEIT R v Cort [2003] 3 WLR 1300; [2004] 4 All ER 137 (CA)

The nature of consent, and its ambit and operation as a criminal law defence, remains somewhat unclear (see De Wet De Wet en Swanepoel Strafreg 4ed (1985) 94). This is not surprising, given the fact that the assessment of whether consent is present is largely determined on the basis of public policy. Unlike other justification grounds which indicate that, all things considered, the conduct in question was the right thing to do (eg defence), consent “embodies a recognition that the autonomy of the other person (‘victim’) is involved, and that if that person agrees to the conduct there should be no offence” (Ashworth Principles of Criminal Law 3ed (1999)331). Recognizing a defence of consent involves taking the individual will into account, in allowing individuals “to assume those consequences that they took into account when they adopted the decision; that is, in permitting them to incorporate these consequences into the course of their lives” (Nino The Ethics of Human Rights (1991) 180). It is clear that the law allows a person complete right of disposal over her property, but does not recognize her consent to the taking of her life by another. More difficult questions arise in relation to whether there can be consent to a violation of bodily integrity, particularly in the area of sport andmedical treatment (see Burchell Principles of Criminal Law 3ed (2005) 333-338). A particularly significant question, which is central to the discussion which follows, is when the apparent consent of the complainant can be excluded. Though it is settled law that consent induced by force or threats is not recognized for the purposes of the criminal law (Burchell 341), the position is not as clear with regard to whether consent induced by fraud will be excluded as a defence (Van Oosten and Labuschagne “Bedrieglike Voorstellings en Toestemming in die Strafreg” 1977 De Jure 80 81). This issue will be discussed below, in the light of the case of R v Cort.

Criminal Law Defences Divides

Criminal Law Defences Divides

Duress by Indirect Circumstances in English and South African Law: A Comparison – R v Brandford [2017] 2 All ER 43; [2016] EWCA Crim 1794

While duress by means of direct threats can provide a defence in criminal law, the legal question is whether threats conveyed indirectly are capable of providing a valid defence in criminal law. More specifically, can indirect threats then also be used as a means of defending another party’s interests that are under attack? There appears to be both academic support and precedent to answer this question in the affirmative.

Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law

Atrocities are often unprecedented and identifying them therefore may require moral and political judgement, not only the application of legal rules. Consequently, potential defendants charged for perpetrating them may be genuinely unable to recognize the law that prohibits their criminal activity. Starting from its classical treatment in Hannah Arendt’s Eichmann in Jerusalem, this problem has perplexed scholars who have noted the seemingly normal character of defendants in mass atrocity cases. In disagreement with other scholars in the area, I argue for a recognition of a “mistake of law”? defense in international criminal law. The Article demonstrates the stakes of the claim through three hypothetical international criminal cases with different political underpinnings, all pertaining to burning contemporary concerns: cases against individuals responsible for the enormous risks of climate change; against abusers of migrants in the context of border enforcement; and against individuals responsible for the termination of pregnancies in abortion clinics. I argue for a dual approach: on the one hand, prosecutors and judges must constantly leave open the possibility of a radical departure from extant doctrine and precedent in charging individuals. On the other, they must recognize that defendants may reasonably not be able to recognize the law qua law, especially when such departures occur. The internal tension between these two imperatives sheds light on the predicament of international criminal adjudication. A recognition of the proposed mistake of law defense is but a modest doctrinal solution for a much more fundamental perplexity of the discipline. Yet it is especially crucial today, with an ever-clearer normative divergence among actors in the “international community.”?

Review of Mark Dsouza’s Rationale-Based Defences in Criminal Law

Mark Dsouza’s new book, Rationale-Based Defences in Criminal Law, aims to shed new light on the question of how to conceptualize justifications and excuses as defenses against criminal liability. His offers an alternative to the common account on which justifications negate the wrongness of acts whereas excuses negate only the actor’s blameworthiness but not the act’s wrongness. Instead, Dsouza contends that the justification–excuse distinction is entirely a matter of the quality of the defendant’s reasoning. His account of justifications is generally compelling, although his accounts of excuses and of the moral norms underlying the criminal law are less persuasive. Overall, however, Dsouza successfully establishes his quality-of-reasoning view as a viable competitor theory of justifications and excuses.

The defence of sane automatism and non-pathological criminal incapacity in South Africa: an epistemological intersection between psychology and law

Psychologists and psychiatrists are frequently requested to offer expert opinion regarding the defences of non-pathological criminal incapacity and sane automatism – which are increasingly raised in criminal courts in South Africa. This article briefly explores the development of these defences in South African criminal law and highlights some of the conceptual and epistemological difficulties at the intersection between the law and psychology. The changing legal understandings of the concepts of sane automatism and non-pathological criminal incapacity require careful consideration by mental health experts, and, while these experts can undoubtedly assist the courts, they should be cautious of using reductionist methods to conflate psychological concepts with legal concepts.

Conflicting Duties in Criminal Law

Despite the great interest aroused among Anglo-American criminal law scholars by the justification of necessity, the conflict of duties as a separate defense sui generis has gone largely unnoticed until now. The aim of this paper is to fill the gap by providing a critical review of the concept and foundation for a conflict of duties as defense in the continental criminal law. Regarding the former, this legal institution is defined as a conflict between grounds of obligation that cannot be cumulatively fulfilled. Their deontic nature (prohibited or required) is thus irrelevant. With regard to the second issue, the argument is made that the solution of the collision involves a judgment set out to hierarchically arrange the colliding reasons from a formal point of view that is respectful with the principles of autonomy and solidarity. Therefore, the obligor must only fulfill the strongest ground of obligation—the only duty that can be legitimized in the particular situation—or, when before a conflict between equivalent grounds of obligation, they must comply with the disjunctive or alternative duty—aid one or the other—which the legal system imposes on them.

Emergency Situations and the Defence of Necessity

This article explores the extent to which the criminal law defence of necessity in both its excusatory and justificatory forms can apply appropriately in situations of emergency or natural disaster. Some particular problems are examined, including the possible limitation of the defence to responses to threats to life rather than threats to property and arguments that the defence only applies to persons to whom a defendant owed some duty of protection. The article draws on research into disaster response and recovery to suggest that several formulations of the defence are not well-suited to protect disaster responders, particularly spontaneous volunteer responders, and calls for reform to reconcile more effectively the competing interests and policy imperatives arising in disaster situations.

Mark Dsouza, Rationale‐Based Defences in Criminal Law, Oxford: Hart Publishing, 2017, xx + 216 pp, hb £65.00.

The Modern Law ReviewVolume 81, Issue 2 p. 385-389 REVIEWS Mark Dsouza, Rationale-Based Defences in Criminal Law, Oxford: Hart Publishing, 2017, xx + 216 pp, hb £65.00. James Edwards, James Edwards Worcester College Oxford.Search for more papers by this author James Edwards, James Edwards Worcester College Oxford.Search for more papers by this author First published: 12 March 2018 https://doi.org/10.1111/1468-2230.12337 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume81, Issue2March 2018Pages 385-389 RelatedInformation

The Defence of Superior Orders in International Criminal Law: The Eichmann Trial and Kant's Philosophy

Obedience to superior orders was frequently put forward as a defence in the “war crimes trials galore” conducted by national and international courts and tribunals following World War II. This paper provides an exposition of the history and development of the theory and application of the defence in international criminal law. Particularly, the “manifest illegality” standard is discussed in a rejection of the absolute form of the defence. The 1961-1962 Eichmann trial in Jerusalem is provided by way of example. Adolf Eichmann used Kantian philosophy to conceptualise his reliance on the superior orders defence. This paper contends that Eichmann distorted Kant’s philosophy on duties and the Categorical Imperative. The paper concludes with an analysis on how the Eichmann trial contributed to the development of the defence in international criminal law.

Targeted Killings

Though International Criminal Law evolves, its evolution needs a careful, considered and consensus among its members through either customs, treaty or other recognized source of international law. The emergence of targeted killings is not clear whether it is a legally accepted counter terrorism policy or a form of extra-judicial killing, thus leaving the jurists undecided; either to criminalize or embrace it as a defence in international criminal law. In a bid to protect national security, many governments have intensified the efforts to counter the terrorists’ threats and attacks. Resorting to employing target killings is one of such attempts of counterterrorism that has created a sharp divide between those who support and those who oppose targeted killings by contending that it is resplendent with numerous human rights abuses. This paper discusses the extent to which targeted killing has been applied in the contemporary society, the arguments for and against, as well as its legality and legitimacy under international law.

In Defence of Culture? Racialised Sexual Violence and Agency in Legal and Judicial Narratives

There is a rich body of work in critical race and feminist theories that have criticised as Euro/Anglo-centric, and hence exclusionary, the liberal foundations of Western democratic legal systems. The basis of such critiques is that legal personhood is premised on an atomistic individual agent that purports to be neutral but in actuality reflects and maintains the hegemonic gendered and raced status quo privileging the white, middle to upper-class man to the exclusion of women and all racial and cultural Others. Some approaches, such as cultural defences in criminal law, have sought to address this via a recognition and incorporation of the difference of Other groups and their different moral norms, proclivities and circumstances. To illustrate, this discussion will draw on a cultural defence that was advanced in a series of group sexual violence cases that involved four Pakistani, Muslim brothers. While concluding that culture permeates the actions of all individuals, this article seeks to show how cultural recognition approaches in law often overlook the individual agency of those differentiated through their racial, ethnic and religious visibility. Instead of asserting the primacy of individual free will and a rational agent as the main driver of criminal behaviour cultural defences, in particular, appear to attribute criminal action to the morally aberrant traditions and practices of non-Western cultures. At the same time, such approaches to cultural recognition fail to acknowledge that culture, and not just the culture of Others, is necessarily the backdrop for all (group) sexual violence. With these points in mind, the paper ends with some suggestions for accommodating alternative narratives that seek to avoid the reductive scripts that currently appear to characterise legal and judicial musings on culture

Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse

AbstractArticle 31(1)(d)1of the Rome Statute of the International Criminal Court (ICC Statute) presents an important opportunity to reconsider the defence of duress in cases of unlawful killing. While the case ofErdemovićhas done much to substantiate the existence of the defence of duress at international law it appears to have curtailed the doctrine by interpreting it with reference to a strict form of proportionality characteristic of duress as justification. On the other hand, duress as excuse requires some measure of proportionality. This article will contend that the hybrid approach of Nuremberg Military Tribunals (NMTs), defined duress and the moral choice test primarily by reference toculpa in causa, not resorting to duress, and a ‘softer’ proportionality and in doing so, provided a more flexible and workable model for duress. Article 31(1)(d) of the ICC Statute, although an interesting attempt to find the balance between duress as excuse and justification, is a missed opportunity to redefine the defence in international criminal law. An alternative test for duress, with reference to the principles that emerged from the jurisprudence of the NMTs, is required in order to find the correct balance between duress as excuse and justification.

Reforming automatism and insanity: Neuroscience and claims of lack of capacity for control.

This paper examines some of the issues raised by the current criminal law defence of automatism and the related defence of insane automatism, and considers what neuroscience may contribute to the reform discussion. It also considers some of the claims made in relation to the impact of neuroimaging in the courtroom. It examines an American medical case report in which an individual's criminal behaviour is linked to a brain tumour, and considers how the reformed law as presented in the Law Commission for England and Wales' Discussion Paper might treat such claims. It concludes by examining what assistance the law may gain from a deeper understanding of how a sense of agency emerges from brain states, and the implications of this scientific knowledge for the reform of the law.

Prawo zróżnicowane dla grup: wyzwanie dla prawa karnego

The liberal project of tolerating and accommodating the beliefs and practices of minority cultures and religions poses a serious challenge to the usual liberal understanding of penal law. Whatever accommodations may be available in other areas of the law, it is often thought that the penal law should be the same for everyone. This view has been challenged by advocates of “cultural defences”, who argue that truly equal treatment requires evidence concerning the cultural reasons for a person’s actions to be considered rather than ignored. Most advocates of some form of cultural defence have treated it as relevant to existing criminal law defences, or as a distinct excuse, rather than as a reason to vary the demands of the penal law or to exempt members of minority cultures from it. But the strongest and most persuasive liberal arguments for accommodating minority cultures imply that members of minority cultures may indeed be entitled to exemptions from penal law.Liberal arguments in favour of group-differentiated rights apply as much to the demands of penal law as to the demands of any other kind of law. So the argument for group- -differentiated rights appears to be inconsistent with the claim that there should be one penal law for all. There are (at least) three possible ways of resolving this inconsistency. First, one might give up the ideal of one penal law for all; second, one might seek an argument for exempting penal law from the demands of group-differentiated rights. In this paper, I explore a third possible resolution: the distinction between a core of penal law-call it “criminal law” strictly speaking – that does indeed apply to all and is not open to group-based differentiation and a periphery of penal law-call it “regulatory penal law” – that need not apply to all and can therefore be differentiated to accommodate group rights. Whether this resolution succeeds or not, the need to consider it shows that the problem of accommodating cultural diversity goes to the heart of what we mean by criminal law.