This chapter addresses one of the more contentious issues in international criminal law: the extent to which a defendant should be able to plead that there are circumstances excusing or justifying what will invariably be appalling crimes. It first notes that while the distinction between justifications and excuses is known in a number of national legal systems, it is of no direct relevance to international criminal law. It then discusses the following defences before international criminal tribunals: mental incapacity, intoxication, self-defence, duress and necessity, mistake of fact and law, and superior orders. It also considers two defences which arise under the law of war crimes: reprisals and ‘tu quoque’, and military necessity.
Chapter
13. Defences or grounds for excluding criminal responsibility
Chapter
14. General defences
This chapter deals with general complete defences that the accused can use to avoid liability. The focus is on defences that can apply (with one exception) to offences throughout the criminal law and will result in the accused’s acquittal. Five kinds of general complete defences are examined: insanity (as a defence), duress by threats, duress by circumstances, the public and private defence (also known as self-defence), and necessity. The chapter first considers the categorical division between excuses and justifications, before explaining the elements of each of the defences in turn. It then outlines potential options for legal reform concerning individual defences and concludes by discussing the application of the general defences to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
Chapter
14. General defences
David Ormerod and John Child
This chapter deals with general complete defences that the accused can use to avoid liability. The focus is on defences that can apply (with one exception) to offences throughout the criminal law and will result in the accused’s acquittal. Five kinds of general complete defences are examined: insanity (as a defence), duress by threats, duress by circumstances, the public and private defence (also known as self-defence), and necessity. The chapter first considers the categorical division between excuses and justifications, before explaining the elements of each of the defences in turn. It then outlines potential options for legal reform concerning individual defences and concludes by discussing the application of the general defences to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
Chapter
9. Mental conditions, intoxication and mistake
David Ormerod and Karl Laird
This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but to excuse as to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime and intoxication induced with the intention of committing crime.
Chapter
10. General defences
This chapter considers general defences other than those focused on D’s mental condition and looks at cases where D will usually have performed the actus reus with the appropriate mens rea. The chapter begins with a discussion of the distinction between justifications and excuses. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act, whilst excuse concerns the circumstances of the individual actor. General defences include infancy (children less than 10 years old and children 10 years old and above), duress, necessity, and orders of a superior. The chapter also discusses public and private defence (‘self’-defence), the statutory ‘clarification’ of these defences, the controversy over householder self-defence, force used in the course of preventing crime or arresting offenders, force used in private defence, entrapment, and impossibility.
