Defense In Criminal Law Research Articles

Criminal Responsibility and the Emotions: If Fear and Anger Can Exculpate, Why Not Compassion?

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good (albeit not good enough) reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial (and should perhaps be rejected) as even a partial defence. This pattern of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that (in the law’s eyes) such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assisting suicide. Finally, the article briefly discusses the question of whether, if we accept that assisting suicide can sometimes be justified, compassion should play any essential role as an element in such justification.

Bringing reason to a messy doctrine: The distinction between mistake of law and mistake of fact

ABSTRACTThis article is concerned with the distinction between mistake of law and mistake of fact in criminal law defences. The article criticises the traditional view that distinguishes between mistake of law and mistake of fact by the criterion of perceptibility. The authors argue that the traditional view is over-inclusive and, if applied consistently, would assimilate all cases of mistake into the category of mistake of fact. The modern ‘prohibition-centred’ approach is also criticised, since it suffers from ambiguity as to what counts as ignorance of, or a mistake about the criminal prohibition or its meaning. Following a critical discussion of the rationales for the differential treatment of mistake of law, the authors propose and justify an alternative test that is based on the rationale of promoting compliance with the law. The alternative test is a two-stage test. First, the criminal prohibition must be identified as the conduct rule that derives from all signs that: (a) are made primarily for the purpose of changing the legal situation; and (b) are addressed by the state or its officials to an indefinite group of persons. Second, the two types of mistake must be distinguished as follows: (a) a mistake of law is a failure to infer that the conduct rule, which was identified in the first stage, applies to a given set of facts, where that inference can be made solely on the basis of the meaning of the conduct rule and the facts determining its temporal and territorial effect; and (b) a mistake of fact is a mistake in regard to the existence (or a lack of awareness of the existence) of the set of facts.

The governance of religion and law: Insights from the prohibition of usury

Religion and law are often portrayed as belonging to different, isolated spheres and as conflicting with each other, especially with regard to the process of governing today's global economic and political affairs. The portrayal and handling of such conflicts are especially reflected in media reports and are ultimately part of the public debates that precede legislative action dealing with a great variety of legal issues, including, but not limited to, sumptuary laws, the wearing of the headscarf and other apparel in public, the acceptance and application of a cultural defense in criminal law, and the exclusion of various cultural products, such as food, beverages, or motion pictures, from international trade. This article argues against this dominant perception, positing that religion and law are instead complementary and merely operate at different levels of perception, effectively pursuing the same purpose. Therefore, it is advocated that greater caution or a so-called “precautionary principle of incom...

Prosecutor v. Draaen Erdemovic: A Reconsideration of the Duress Defense in International Criminal Law

This paper addresses the availability of the duress defense in international criminal law by reconsidering the ruling of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Dražen Erdemovic. In this paper, I challenge the holding of the Appeals Chamber and argue that the Tribunal made an erroneous decision because it failed to distinguish the defense of duress from that of the common law defense of necessity. Accordingly, by conflating duress and necessity, the Tribunal failed to grant sufficient consideration to whether a defendant who acts under extreme duress is morally culpable for the criminal acts that he commits.

Book Review: Mens rea and Defences in European Criminal Law, by Jeroen Blomsma. (Cambridge: Intersentia, 2012)

Book Review: <i>Mens rea and Defences in European Criminal Law</i>, by Jeroen Blomsma. (Cambridge: Intersentia, 2012)

Steven Yannoulidis, Mental state defences in criminal law

Steven Yannoulidis, Mental state defences in criminal law

Mental State Defences in Criminal Law

Mental State Defences in Criminal Law

On John Gardner's Justifications and Excuses

In his book Offences and Defences 1 Gardner republishes several of his essays on the philosophy of the criminal law. Some essays focus on criminal law defences 2 and provide an account of the distinction between justifications and excuses from the perspective of practical rationality. It would be impossible to present the richness of Gardner’s account in this comment. I will therefore focus on the issues which seem to me more controversial, and mainly on: (1) whether criminal law justifications justify rather than negate wrongdoing; (2) whether or not justifications serve as a guidance to potential offenders; (3) the distinct nature of excuses. I will first present Gardner’s account of these issues and then discuss them from a different perspective - that of the criminal law.

Modern Examination of Insanity Defense in Criminal Law Under the Development of the Dynamic Psychiatry – From Categorization to Functionalism

In past, the common legal concept of insanity defense was a concept of categories. Accordingly, in order to prevent imposition of criminal liability upon the offender out of insanity, the offender should have been recognized as suffering of disease. Only if the mental disease could have been related to a specific list of diseases, the offender could have been considered as insane. Medical major developments and legal developments since the nineteenth century brought up changes in this concept. The dynamic psychiatry, which became major measure in mental disorder understanding, compelled a deep change in the former concept. It is argued, that any mental disorder should be examined functionally, and not by categories, as to the application upon the defense of insanity in criminal law. Only under functional examination, it is possible to seriously examine cases of temporary insanity or partial insanity. The article argues for the functional examination of mental disorder as the necessary measure to examine the applicability of the insanity defense in criminal law.

When Should the Defence of Duress (in Australian Jurisdictions) Be Available to an Accused Who Has Contributed to the Circumstances of His/Her Own Defence?

Duress is a criminal law defence, available in all nine Australian criminal jurisdictions, that operates to completely excuse a defendant of criminal responsibility where that defendant has only committed a criminal offence in response to serious threats made by another person. In order to ensure an application consistent with its rationale, and to prevent abuse of the defence, duress has traditionally been subject to a number of strict limitations. One of these restrictions, again found in all Australian jurisdictions although subject to a number of different formulations, is a limitation of the defence to defendants who have not in some way contributed to the circumstances of duress (for example, by choosing to associate with violent persons or professional criminals who later violently threaten the accused into participating in a crime). In this article I note the problems with the current Australian formulations of the restriction, and then develop a new proposal to be employed throughout all nine jurisdictions. In a case where an accused joins a terrorist or a mafia organisation in full knowledge of the group’s criminal objectives and violent methods, denying the defence of duress appears no more than basic common sense. However, there may be less certainty in cases at the margins, such as where the accused only learns of the group’s true nature after a violent threat has been made, or where the crime committed in response to the threats is manifestly outside the group’s normal pattern of offending. In these kinds of cases, my proposed restriction will seek to balance fairness to the individual accused, with protection of the public and ensuring punishment for accused persons who are sufficiently culpable for the offence committed.

Defences in International Criminal Law

Defences in International Criminal Law

Defences in International Criminal Law

Defences in International Criminal Law

The Laws of War and the “Lesser Evil”

One of the fundamental principles of international humanitarian law (IHL) is that it recognizes no lesser-evil justification for breaking its rules. Those violating the laws of war will thus be viewed as war criminals even when their conduct was intended to - and in fact did - prevent much greater harm. This Article argues that this deep-rooted absolutist stance undermines the humanitarian drive of the laws of war, and offers, instead, a lesser-evil defense. The argument begins with the obvious analogy to the necessity defense in domestic criminal law, emphasizing the adaptations that are necessary in order to transpose the domestic concept onto the international plane. It then proceeds to test possible first-order accounts – deontological, consequentialist, and institutional – for why IHL might nonetheless prefer a more absolutist stance than domestic law. It finds that none of these accounts offers a compelling explanation for the exclusion of any lesser-evil justification from IHL. The Article then proceeds to develop a blueprint for the concept of a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good under certain conditions. A central component of the justification, which is required given the special nature of IHL, is a condition that the greater humanitarian good would benefit the enemy, rather than the actor’s own people.

The Laws of War and the 'Lesser Evil'

One of the fundamental principles of international humanitarian law (IHL) is that it recognizes no lesser-evil justification for breaking its rules. Those violating the laws of war will thus be viewed as war criminals even when their conduct was intended to - and in fact did - prevent much greater harm. This Article argues that this deep-rooted absolutist stance undermines the humanitarian drive of the laws of war, and offers, instead, a lesser-evil defense. The argument begins with the obvious analogy to the necessity defense in domestic criminal law, emphasizing the adaptations that are necessary in order to transpose the domestic concept onto the international plane. It then proceeds to test possible first-order accounts – deontological, consequentialist, and institutional – for why IHL might nonetheless prefer a more absolutist stance than domestic law. It finds that none of these accounts offers a compelling explanation for the exclusion of any lesser-evil justification from IHL. The Article then proceeds to develop a blueprint for the concept of a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good under certain conditions. A central component of the justification, which is required given the special nature of IHL, is a condition that the greater humanitarian good would benefit the enemy, rather than the actor’s own people.

The Insanity Defence in Criminal Law: Strategies of Choice or of Constraint?

Criminal liability rests upon the capacity of the person to distinguish between what is legal and illegal. Loss of this capacity, through insanity for example, stops the person to be held liable before a court of law. Only medical treatment will be sought. Such legal strategy expresses a philosophical choice most European legal systems made at the end of the 18th century and which is not without its own doubts. Yet, most of the issues raised about the insanity defense in English law focus on the meaning of insanity. A comparative approach with French law sheds light on the legal strategy adopted to determine what is legal and illegal: the practicalities of the procedural system play an intricate part in formulating the strategy in criminal law.

Murder and the Defence of Necessity

This honours paper was supervised by Dr. Gregor Urbas. This article discusses the criminal law defence of necessity, as applied to a murder charge in Australian jurisdictions. In the article, I argue that necessity should be available as a complete statutory defence to murder in all Australian jurisdictions, if certain conditions are met. To reach this conclusion, I first analyse the state of the law of necessity across the Australian and UK jurisdictions, give reasons for the scope of the defence extending to murder cases (based on utilitarian and deontological theories) and finally provide a statutory framework for a uniform defence to a murder charge. The article makes use of real-life and hypothetical examples in order to demonstrate the practical effect of necessity applying to a murder charge in different situations.

Legal implications of genetics and crime research.

Two controversial topics dominate discussions of the legal implications of genetics and crime research; (1) the viability and politics of such research, which has sparked fervent debate in the USA; and (2) the current status of new or atypical criminal law defences, which would include a genetic-defect defence to criminal behaviour. This chapter begins by examining the scientifically discredited XYY chromosome syndrome defence, the major genetic-defect defence that defendants have attempted, albeit unsuccessfully. It then focuses on attorneys' efforts to test for evidence of genetic abnormality in the recent and highly publicized case involving convicted murderer Stephen Mobley, whose family history reveals four generations of violent, aggressive and behaviourally disordered men and women. Mobley is currently appealing his death sentence before the Georgia Supreme Court on the basis that the trial court denied his request both to have genetic testing performed and to have such testing allowed as evidence into court. This chapter concludes by emphasizing that the question is not whether genetic evidence will ever be admitted into court, but when and under what kinds of circumstances. No doubt, genetic evidence, and comparable kinds of biological evidence, will have a major impact on juries when such evidence is more fully accepted by the legal and scientific communities.

Feminist Reflections on the Use of Force

In an era when the laws on the use of force are being reappraised, placing the laws on the use of force forward for normative assessment is a vital aspect of the quest for a just world through law. Likewise, appreciation of women's perspectives, feminist knowledge, and the impact of conflict on women and girls must be threaded into law for any endeavor to label itself a program for a just world. Despite the acknowledged relationship between law and gender, when it comes to the laws on the use of force, two persistent silences remain. First, although there is a handful of insightful and relevant feminist works on the use of force, there is an overall absence of feminist analysis of the laws on force. This silence extends from the application and interpretation of the laws on the use of force through to the normative qualities laws on force espouse. (1) Second, outside of feminist scholarship, there is a complete absence of international legal discussion on the role of gender in the laws on the use of force and the role of the laws on the use of force in the construction of gender. Consequently, force and gender remain distinct categories of international legal inquiry. The incongruence of this analytical and practical segregation is emphasized in Goldstein's study of war and gender. (2) Goldstein finds war to be a culturally diverse matter, with a range of forms and modes across the globe. Likewise, Goldstein finds the performance and meaning of gender varies across cultures. Only when war is considered in terms of its construction of gender and when gender is considered in terms of its influence on wars do we find cross-cultural consistency. (3) Militaries and military force require, and reproduce, gendered discourses. Yet international laws that distinguish between prohibited and justified military force are silent on gender, as are their key commentators. At the present, even feminist scholarship lacks robust engagement or dialogues on gender and force. The feminist project of reflecting on and engaging with the international laws on the use of force is the locus of the rest of this paper. First, the normative value of an inherent right of states to self-defense--despite the acknowledged application inadequacies--is perceived as a sacred element of the international order. Yet, if we shift to national incarnations of the right to self-defense, under criminal law defenses, sustained feminist critique is now acknowledged as challenging the construction of self-defense within Western liberal legal systems. (4) What role might feminist understandings of the inadequacies of interpersonal self-defense laws play in approaching the inadequacies of international self-defense? (5) Challenges by feminist jurisprudence to self-defense laws can be used to demonstrate the poverty of an analogous right to self-defense for states and to challenge the self-evidence of the right. …

Defending ‘Terrorism’: Justifications and Excuses for Terrorism in International Criminal Law

The first part of this article outlines the purported causes of terrorism advanced in the UN General Assembly since the 1970s, and the contrary views of States on whether these causes ought to justify or excuse terrorist violence - particularly self-determination or national liberation violence. The second part examines how a limited range of justifications for any new international crime of terrorism could be accommodated by individual defences in international criminal law (including self-defence, and duress/necessity). It then proposes that non-State group actors accused of terrorist crimes should be entitled to plead 'circumstances precluding wrongfulness', drawn analogously from the law of State responsibility. While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, the final part argues that some crimes of terrorism could be regarded as 'illegal but justifiable' (or at least, excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights'.

Defending ‘Terrorism’: Justifications and Excuses for Terrorism in International Criminal Law

The first part of this article outlines the purported causes of terrorism advanced in the UN General Assembly since the 1970s, and the contrary views of States on whether these causes ought to justify or excuse terrorist violence - particularly self-determination or national liberation violence. The second part examines how a limited range of justifications for any new international crime of terrorism could be accommodated by individual defences in international criminal law (including self-defence, and duress/necessity). It then proposes that non-State group actors accused of terrorist crimes should be entitled to plead 'circumstances precluding wrongfulness', drawn analogously from the law of State responsibility. While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, the final part argues that some crimes of terrorism could be regarded as 'illegal but justifiable' (or at least, excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights'.