90

LAW OF Criminal Defences “defences are an embodiment of complex human notions of fairness and morality”

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

90

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

• Its applicability in Civil & Common Legal System’s

• 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

90

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 excuses as 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.

90

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, when 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)

90

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.

• 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

90

PAKISTANI LAW ON CRIMINAL DEFENCESCHAPTER 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.

• 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:

90

PAKISTANI LAW ON CRIMINAL DEFENCESCHAPTER 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

• 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: 

90

PAKISTANI LAW ON CRIMINAL DEFENCESCHAPTER IV

• 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:• 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:

90

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

– Self-defence

– Battered woman syndrome

– Necessity & duress

– Mistake of fact

– Entrapment

– Double jeopardy

– Provocation

90

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:

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.

90

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 an 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.

90

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

• Various factors can influence “automatistic” behaviour, from sleepwalking, the consumption of drugs and alcohol, to a disease of the mind.

90

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 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.

90

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.

• A “fitness hearing” asks:1. Does the accused understand the nature of the

proceedings? In other words, does the accused understand that he or she is on trial?

2. Does the accused understand the possible consequences of a trial? (prison)

3. Is the accused able to communicate with his or her lawyers?

90

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 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.

90

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.

• If successful, this defence can lower a conviction or reduce a 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).

90

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. 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.

90

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 exchange of 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.

90

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.

• The main difference between battered woman 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.

90

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 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.

90

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 only be 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.

90

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 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.

90

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.

• 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.

90

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.

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.

90

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 motion:

1. Autrefois acquit – accused claims he or she was already acquitted (found not guilty) of the charge(s)

2. Autrefois convict – accused claims he or she was already convicted (found guilty) of the charge(s)

90

PROVOCATION

Definition: a person is “provoked” to lose their self-

Control, 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 another man insults his wife. A then assaults the man 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.

90

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 crime in 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