LAW OF Criminal Defences
“defences are an embodiment of complex human
notions of fairness and morality”
90
Mian Ali Haider
L.L.B., L.L.M (Cum Laude)
U.K.
Contents/ research for this PPT are internet based and are not my creation
INTRODUCTION
• The term ‘defence’ derives from Anglo-American
law and is a rather broad and undifferentiated concept
comprising
– both, substantive and procedural bars to
punishability and prosecution
90 & Common Legal System’s
• Its applicability in Civil
• Most civil law systems refrain from putting both
types of exoneration under one heading.
– They keep a strict separation between the
substantive elements of a crime and the
procedural requirements for its prosecution
LAW OF CRIMINAL DEFENCES
• Most criminal law systems recognise the distinction between
justifications and excuses
– between wrongdoing in the sense of wrongfulness or
unlawfulness of the act
– culpability in the sense of blameworthiness of the actor
• German and the Dutch systems, cultivate the distinction between
justification and excuses90as basic elements in the structure of
criminal acts
• These in doctrine and in law, construct a crime in three stages or
units.
– Conduct is only punishable when,
• firstly, it satisfies the definitional elements of a crime,
• secondly, it is unlawful, and,
• finally, it is blameworthy.
LAW OF CRIMINAL DEFENCES
• Anglo-American law does not utilise this differentiation in the
same fundamental way; the criteria for justification and excuse
are interwoven
– This has been attributed partly to the ‘common law’s
affection for reasonableness’
– its non-structured way of legal reasoning on the point
• Not every defence, when90
successfully pleaded, leads to the
exclusion of conviction.
• Some pleas result in mitigation of punishment rather than
exemption.
– Unlike justification and excuse, mitigation presupposes that
the person is convicted and liable to be punished.
– Mitigating circumstances playing a role in the sentencing
stage reduce the severity of a punishment.
• Defense Disclosure (Scottish Practise)
RIGHT TO A DEFENCE
•
•
•
In a criminal case, the state must prove beyond a
reasonable doubt that the accused had the actus
reus and mens rea to commit a crime.
In response, the accused has a basic legal right to
present a defence.
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There are 3 main arguments
that an accused may
use in his or her defence:
1. Deny committing the act; disputing the actus
reus
2. Argue they lacked the intent; disputing the
mens rea
3. Attempt to justify why they committed the act
PAKISTANI LAW ON CRIMINAL DEFENCES
CHAPTER IV
• 76.Act done by a person bound, or by mistake of fact
believing himself bound, by law:
• 77.Act of Judge when acting judicially:
• 78.Act done pursuant to the judgment or order of Court:
• 79.Act done by a person justified, or by mistake of fact
believing himself justified, by law.
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• 80.Accident in doing a lawful
act:
• 81.Act likely to cause harm, but done without criminal
intent, and to prevent other harm:
• 82.Act of a child under seven years of age:
• 83.Act of a child above seven and under twelve of immature
understanding:
• 84.Act of a person of unsound mind:
PAKISTANI LAW ON CRIMINAL DEFENCES
CHAPTER IV
• 85.Act of a person incapable of Judgment by reason of
intoxication caused against his will:
• 86.Offence requiring a particular intent or knowledge
committed by one who is intoxicated:
• 87.Act not Intended and not known to be likely to cause
death or grievous hurt, done by consent
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• 88.Act not intended to cause
death, done by consent in good
faith for person's benefit:
• 89.Act done In good faith for benefit of child or insane
person, by or by consent of guardian:
• 90.Consent known to be given under fear or misconception:
• 91.Exclusion of acts which are offences independently of
harm caused:
• 92.Act done in good faith for benefit of a person without
consent:
PAKISTANI LAW ON CRIMINAL DEFENCES
CHAPTER IV
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•
•
•
•
•
•
•
•
•
•
•
•
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93.Communication made in good faith:
94.Act to which a person is compelled by threats:
95.Act causing slight harm:Of the right of Private Defence
96.Things done in private defence:
97.Right of private defence of the body and of property:
98.Right of private defence against the act of a person of unsound mind,
etc.:
99.Act against which there is no right of private defence:
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100.When the right of private defence of the body extends to causing death
101.When such right extends to causing any harm other than death:
102.Commencement and continuance of the right of private defence of the
body:
103.When the right of private defence of property extends to causing death:
104.When such right extends to causing any harm other than death
105.Commencement and continuance of the right of private defence of
property:
106.Right of private defence against deadly assault when there is risk of
harm to innocent person:
COMMON DEFENCES
• There are several different legal defences that are
available to a criminally accused person.
• Some of the most common ones are:
–
–
–
–
–
–
–
–
–
–
Alibi
Automatism
Intoxication
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Self-defence
Battered woman syndrome
Necessity & duress
Mistake of fact
Entrapment
Double jeopardy
Provocation
THE ALIBI DEFENCE (24)
Definition: arguing that the accused was not at
the scene of the crime when it took place
and therefore could not have committed the
crime.
• A complete alibi must include three
components: 90
1. A statement by the accused claiming they
were not present at the crime scene when
the crime was committed.
2. An explanation of where they were.
3. Names of any witnesses who can confirm
the alibi.
ALIBIS – STRENGTHS & WEAKNESSES
Strengths:
• In order for an alibi to be considered strong, all three
components must exist.
• If a full and reliable alibi can be presented, this is the
strongest defence an accused person can use and it
will likely lead to an90
acquittal.
Weaknesses:
• Alibis generally become weak when there are no
witnesses to verify the claims made by the accused.
• If one or more of the three basic components is
missing, it becomes easier for the Court to raise
doubts about the alibi's credibility.
AUTOMATISM(84)
Definition: an involuntary action by a person
who cannot control his or her actions and
who is in a state of impaired consciousness.
• Automatism can be divided into two types:
– insane and non-insane
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• Various
factors
can
influence
“automatistic”
behaviour,
from
sleepwalking, the consumption of drugs and
alcohol, to a disease of the mind.
INSANE AUTOMATISM
• This type of automatism is linked to a
disease of the mind.
• If it can be proven that an accused person
suffered from a mental disorder and as a
result was incapable of knowing that what he
or she was doing 90
was wrong, the accused may
be declared not criminally responsible
(NCR).
Example: a person with paranoid schizophrenia murders
someone he or she (wrongly) believes is a threat. Due to
this person’s mental condition, he or she cannot truly
appreciate that his or her action was wrong and can be found
NCR; he or she may be referred for treatment instead of
prison.
NOT CRIMINALLY RESPONSIBLE
(NCR)
•
The NCR defence may be raised by the state or
defence, but whoever raises it must prove it in
court.
Before an NCR case can be brought to court, the
accused must be deemed fit to stand trial.
90asks:
A “fitness hearing”
•
•
1.
2.
3.
Does the accused understand the nature of the
proceedings? In other words, does the accused understand
that he or she is on trial?
Does the accused understand the possible consequences of
a trial? (prison)
Is the accused able to communicate with his or her
lawyers?
NON-INSANE AUTOMATISM
• This type of Automatism is often referred to as “temporary
insanity.”
• An accused person who uses this defence argues that he or she
committed a crime while in a temporary state of impaired
consciousness.
• Courts have recognized that a person may enter such an
impaired state as the result
90 of any of the following: a physical
blow, sleepwalking, consuming drugs, a stroke, severe
psychological trauma, and other physical ailments
(e.g.
hypoglycemia).
• Example: While sleepwalking, a man murders his wife. After he
wakes up, he has no recollection of doing so. Even though he
was walking and blinking, he was not aware of what he was
doing when he committed the murder.
INTOXICATION(85,86)
•
•
•
•
Definition: the accused demonstrates that he or she did not have
a guilty mind at the time of the crime because he or she was
intoxicated (most commonly drugs and/or alcohol).
Intoxication may be used as a partial defence.
Generally, an intoxicated person cannot form specific intent but
may be found guilty of a general intent offence.
90 can lower a conviction or reduce a
If successful, this defence
criminal sentence.
Example: If an intoxicated person severely assaults someone, he
or she avoids being charged with aggravated assault because he
or she did not endanger the person’s life knowingly (specific
intent), but the accused may still be convicted of a lesser assault
charge (general intent).
THE CARTER DEFENCE
Definition: More formally known as evidence to
the contrary, this defence aimed to dispute the
evidence put forth by the Crown in drinking and
driving cases.
• In 1985, a breathalyzer test appeared to malfunction
while recording Carter’s
blood-alcohol content.
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Carter presented evidence that he only had two beers
to drink that night, which should not have put him
over the legal limit.
• An amendment to the Criminal Code in 2008 no
longer allows breathalyzer results to be questioned,
thereby overruling the Carter defence.
SELF-DEFENCE(96-106)
Definition: the legal use of reasonable force in
order to defend yourself and your property.
• The Criminal law allows people to use force if they
have to defend themselves, but the amount of force
should not be excessive; no more than necessary.
• The use or exchange90of force must be reasonable.
– "It is both good law and good sense that a man who is
attacked may defend himself. It is both good law and good
sense that he may do, but only do, what is reasonably
necessary.” (Palmer v R, [1971] AC 814); approved in R v McInnes,
55 Cr App R 551
Example: A being attacked with a weapon may use a
weapon to defend him.
BATTERED WOMAN SYNDROME
Definition: a psychological condition caused by
severe and usually prolonged domestic violence.
• The Supreme Court first recognized this defence in
the precedent-setting case R. v. Lavalee, 1990, as an
extension of self-defence.
90 between battered woman
• The main difference
syndrome (BWS) and the traditional definition of
self-defence is the issue of imminent danger.
• In a typical self-defence case, the danger is
immediate.
• With BWS, the danger may not be immediate but
instead is constant.
R. v. Lavallee
• This case established the BWS defence in Canada.
• Angelique Lavallee was in an abusive relationship.
One night she shot her partner in the back of the head
as he was leaving a room.
• She testified that he told her he would come back and
90
kill her later that evening.
She believed him and was
also able to prove that he had physically abused her
for many years.
• The Supreme Court found that it was reasonable for
Lavallee to use lethal force in this situation, even
though her partner was leaving the room.
NECESSITY
Definition: accused persons claim they were
forced to commit a criminal act because they
were in danger themselves.
• The Supreme Court has ruled that this
defence may only90be used in situations where
there appears to be “imminent risk.”
• Example: A speeds to get his wife to a
hospital because she is in labour. If he is
pulled over by a police officer for dangerous
driving, he can try to argue that he is speeding
out of necessity.
DURESS
Definition: when someone is threatened or
coerced to do something against his or her will.
• Duress is similar to the necessity defence; in both
defences the accused claims to have been forced to
commit a crime as the result of being in imminent
90
danger.
• The main difference is that with duress the accused is
forced to act as the result of a threat.
Example: A shoots someone and tells B that he must
help him dump the body. When B refuses, A points
his gun at him, which compels B to cooperate.
MISTAKE OF FACT
Definition: this defence shows a lack of mens rea
due to an honest mistake.
• Ignorance of the law, or not knowing a particular
offence was illegal, is not a valid defence.
90
• Ignorance of the facts, or not understanding all of
the details of a situation, can be used as a defence.
Example: A receives counterfeit money as change.
Unknowingly, A attempts to use the fake money
somewhere else and is caught. The accused knows
that counterfeit money is illegal, but truly did not
know that he possessed fake money.
ENTRAPMENT
Definition: police action induces a person to commit a
crime.
• If a police officer coerces or forces a person to
commit a crime, the officer is guilty of entrapment.
• If the accused can prove the police led him or her to
participate in a crime, the court can dismiss the
charges immediately.90
Example: A is continually harassed by an Omer Virk to purchase
illegal drugs. If A can convince the court that he would not have
purchased drugs without the Omer Virk's forceful
encouragement, he can claim the officer “entrapped” him.
DOUBLE JEOPARDY(403)
Defence: being tried twice for the same offence,
which is generally not allowed.
• Anyone charged with or acquitted of an offence
cannot be tried for it again.
• This defence is usually presented as a pre-trial
90
motion:
1.
2.
Autrefois acquit – accused claims he or she was already
acquitted (found not guilty) of the charge(s)
Autrefois convict – accused claims he or she was already
convicted (found guilty) of the charge(s)
PROVOCATION
Definition: a person is “provoked” to lose their selfControl, and as a result commits a crime.
• Provocation can be used as a partial defence to
justify the accused’s actions.
Example: A is at a bar with his wife one night when
90 wife. A then assaults the man
another man insults his
in a rage and causes significant bodily harm. A can
use provocation as a defence and claim that if the
man had not insulted his wife, he in turn would not
have committed an assault that evening.
QUESTION’S
• Can a person rely on self-defence when he
provoked the act of violence against which he
defended himself?
• Can one who voluntarily gets drunk and
commits a crime90in his state of drunkenness
rely on a plea of intoxication?
• Whether criminal liability should be imposed
on a person who, through his own fault, has
placed himself in a state that would normally
have negated liability for his offence?
• Actio libera in causa