Why is defence afforded to a perpetrator of a criminal act whether he is a principal or secondary offender?

University Degree Law

Table of Statutes

Criminal Law Act 1967 –

s3 (1) … 3

Table of Cases

Abdul-Hussain [1999] Crim LR 570 … 9

Becerra and Cooper (1976) 62 Cr App R 212 … 12

Davidson [1969] V.R.667 … 6

Graham [1982] 1 WLR 294 … 8

Inseal [1992] Crim. L.R. 35 … 12

Kingston [1933] N.L.J.R. 724 … 12

O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751 … 12

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 … 4, 5

Southwark LBC v Williams [1971] Ch 734 … 5

Sullivan [1983] 2 All ER 673 … 9

Tandy [1989] 1 All E.R. 267 … 16

U.S. v Holmes, 26 Fed. Cas. 360 (1842) … 7

Valderrama-Vega [1985] Crim. L.R. 220 … 7

Windle [1952] 2 QB 826 … 10

INTRODUCTION

All offences are made up of two elements, that is the actus reus and the mens rea. Under Criminal Law, if the prosecution has been able to prove the actus reus and mens rea of the offence, the defendant may be guilty unless he or she is able to establish a defence.[1] Among all the defences, some are partial defences which do not lead to a complete acquittal, but only reduce the charge for which the defendant is convicted. It is for the prosecution to prove that the defendant was not relying on the defence if a defence is regarded as a denial of actus reus or mens rea. [2] In the theory of criminal law, it is common to distinguish between justification defences and excuse defences. In the context of justifications, a defence is allowed because the special circumstances in which the action is performed make the action desirable, or at least permissible, from a social and moral point of view. Justification functions as an exception to the criminal prohibition where the action is not wrongful and is warranted. [3] Excuses are often to be about removing blame; that the defendant behaved in an unjustified way, but argues that he is not to blame for his action.[4] The notion of justification and excuses will be examined throughout the essay to determine the reasons why a perpetrator either a principal or secondary offender should be afforded to be given the defence.

SELF DEFENCE

Under common law, it has long been accepted that a citizen is allowed to use reasonable force to protect his own person, his property and the person of another. It is the universally acknowledged notion that no one should yield to unlawful encroachments on his life, bodily integrity or property.[5] A similar approach can be found in the statutory provisions of the s3 (1) Criminal Law Act 1967 which permits the use of reasonable force in order to prevent crime or to arrest offenders.[6] A complete defence will therefore be available when the defendant was facing an unjust threat from the victim and as a result of the threat used a level of force in defence of oneself, another, property or in the prevention of crime provided that the force was necessary and proportionate in the circumstances.[7] In Re A (Children)[8], Robert Walker LJ suggested that if a six year old child firing a gun indiscriminately in a school playground was shot and killed by a defendant to prevent further harm the defendant would be able to rely on the defence of self-defence at common law.

(a) Rights and forfeiture

This approach came to prominence as a result of the work of Suzanne Uniacke who explained the permissibility of killing by self-defence. She explained that a person’s right to life or freedom from violence is conditional upon that person not posing a threat to other people.[9] Where an aggressor threatens to violate the attacked person's right to life or right to bodily integrity, the attacked person will be justified in using defensive force to repel the threat because she is simply protecting her right to life. In becoming an immediate threat to the life of another, the aggressor, temporarily forfeits her right to life as long as she remains a threat. [10]

(b) Rights of autonomy

It is thought that self-defence is justificatory because of the balancing interest involved, that of the defender and that of the aggressor. Supporters of self-defence were of the view that it is part of one right of autonomy that one can defend himself from an unjust attack.[11] This justification is based on contemporary theorist idea of core right not to be killed. Wallerstein suggested a different justification based on “forced consequences”. He provided that self defence is permitted as necessary response where there is no ‘real choice’ but to use defensive force.[12]

Traditionally, it has been suggested that killing to prevent rape is permissible on the basis that it is reasonable to assume that every threat of rape carries with it the threat of death or that rape is equivalent to such a serious injury that, it is therefore proportional to repel the threat with lethal force.[13]

However apart from all the arguments, evidence had held that there is growing evidence that self-defence have become too generous to people who would otherwise bear responsibility for very serious crimes.[14]

NECESSITY

Necessity is a defence which is recognised by the English law only to a limited extent. In Southward v Williams[15], Lord Denning:

“… if homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut.”

(i) Necessity as a justification

The defence of necessity as a justification is also called the ‘the lesser of two evils’. Necessity is thought to encompass a general ‘balancing of harms’ where the D commits a crime to avert an imminent threat to his life or limb, or the life or limb of other persons.[16] This can be seen in Re A (Children)[17] where Ward LJ said that, the law must allow the doctors to choose the lesser of the two evils; the lesser evil as regards the case of the twins is to perform the operation. It is argued that since the harm avoided is greater than the harm inflicted, there is no reason why a defence should not be afforded to the perpetrator. [18]

(a) The ‘rights’ theory

The standard account of justificatory necessity is depending on a utilitarian assessment of the competing goods and harms. However, where two goods are not properly comparable and so a utilitarian approach cannot work, an approach focused on rights will provide a more robust analytical tool.[19]

This is a preview of the whole essay

(a) The ‘rights’ theory

Gardner was of the opinion that it is much more comfortable to think of necessity in terms of the vindication of rights; that a person would have the defence if he committed what would otherwise be an offence but is actually acted to vindicate a right that is recognise by the law.[20] Courts have also been willing to accept a defence of necessity in special defined circumstances where the offence committed is to promote the well-being of a ‘victim’ who is unable to consent. It was stated in F v West Berkshire Authority[21] that the justification is that patients should be treated in a way which promotes his best interest. Lord Brandon:

“…when persons lack the capacity… to take decisions about the performance of operations on them… it is necessary that some other person or persons, with the appropriate qualifications, should take such decisions for them…”

(ii) Necessity as an excuse – Duress of circumstances

The defence of necessity as an excuse deals with cases in which an important interest of the actor was about to suffer a serious injury and out of fear and under the pressure of the circumstances, the actor acted in a way that normally constitutes a crime, in order to prevent the injury to himself or to the other person. If the defendant is able to show that he was ‘constrained by circumstances’ to act as he did, or that he was ‘impelled to act as he did’, he should be afforded a defence.[22]

(a) Overwhelming needs

In Davidson[23], the court provided that necessity involves the elements of emergency and proportion. In the circumstances where his will was 'overborne' by the fear, and he did not have a fair opportunity to avoid acting as he did, the rationale of the defence is 'that the actor has been in effect compelled to act as he does by the pressure of a … threat … it is the impact of that pressure on his freedom to choose his course of action that suffices to excuse him from criminal liability'.[24] In a German Case referred to by Hitchler[25], the court in the case held that the act of the accused which in a sudden storm pushed her boyfriend into the water in order to save herself from immediate danger was done in circumstances of emergency, and was therefore not due to her fault.

(b) Higher value

Where D’s act involves not ‘killing one to save one” but killing a smaller number to save a larger number, the principle of “greater value” is appropriate. Smith and Hogan imply that it would be lawful to open a dike, drowning the half-dozen inhabitants of a farm if that were the only way of saving a dam from bursting and inundating the whole town.[26] In the American case Holmes[27], Baldwin J: “it is better that some should live than that all perish.” Where a defendant acted under this situation, his should be afforded the defence of necessity and would probably be excused and acquitted.

DURESS

Criminally, some defences act to justify, and some simply excuse. In considering duress, it is standardly portrayed as an excuse. This is because the excusing condition is viewed as a morally involuntary response on the part of the actor.[28] Schopp likewise views the defence as applying when the defendant clearly did not choose to do the criminal act, arguing that the defendant in effect claims 'I am only human; only saints and heroes would act differently'.[29]

(i) The no choice model

In order to establish the defence a defendant must show that he or she committed the crime because of threats of death or grievous bodily harm; only threats of death or serious injuries could form the bases of a defence of duress.[30] In Valderrama-Vega[31], the defendant pleaded duress on three grounds which one includes threats of death or serious injury. The Court of Appeal held that he could rely on the defence of duress as long as the threats of death or serious injury were for him a substantial reason for committing the crime.

(ii) The lack of choice model

The defence of duress will also be allowed where someone’s choice on whether to comply with the law was influenced by an appalling dilemma thrust upon him by the wrongful act of a third party.[32] In Hart's terminology, since he has not had a "fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him".[33] The test was set out in Graham[34] by Lord Lane CJ:

“Was [D], or may he have been, impelled to act as he did because, as a result of what he reasonably believed [E] has said or done, he had good cause to fear that if he did not so act [E] would kill him or… cause him serious physical injury?”

Lord Lane CJ continued:

“If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of [D], would have responded the same way to the threats?”

(iii) The ‘character’ model

In determining whether the defendant responded in a way which was proportionate to the threat, the court will attribute the characteristics of the defendant to the reasonable person test. The characteristics are those which will affect (a) the level of firmness expected (b) the ability of the defendant to escape from the threat, and (c) the gravity of the threat.[35] If the reasonable person would have acted in the same way as the defendant did, there is no reason why the defence of necessity should not be afforded to the perpetrator.

(iv) The ‘no mens rea’ model

In Abdul-Hussain[36], the court stressed that the threat of death or serious injury had to be imminent. The threat must be of immediate harm so that defendant could not reasonably be expected to take evasive action. If this was the case, the defendant did not intend to harm the victim, but rather his purpose was to avoid the threat being carried out.[37]

INSANITY

Under the British justice system, defendants could use insanity as an excuse only if they had mental defects that prevented them from being able to know right from wrong when they committed a crime.[38] Under the McNaghten’s Rules[39], the insanity defence is available to a defendant who can prove that at the time of his or her offence, he or she was suffering from a ‘defect of reason’, caused by ‘disease of the mind’. The phrase ‘disease of mind’ means that defendant must show that he was suffering from a disease which affected the functioning of the mind.[40]

This rule states that insanity is an excuse when the sufferer did not know the nature or quality of the action taken or did not know that it was wrong.[41] This may arise where the defendant had no awareness of what was happening[42] or where the defendant was aware of what he was doing, but was deluded as to the material circumstances of his actions, rendering the act fundamentally different. It is even so where a person was unaware of the consequence of his act.[43] ‘Wrong’ here means that the act was illegal; the defendant must not know that his actions were legally wrong. In Windle[44], Lord Goddard held that “wrong” means contrary to the law, and not “wrong according to the opinion of the man”.

It is the reason that insanity involves a particular kind of blindness or ignorance that makes insanity to be regarded as an excuse. In addition, another reason that the insane criminal has an excuse is because that his or her action was not voluntarily undertaken. Criminally insane are to be excused because they are mentally diseased; more particularly, because their actions were the ‘product’ of a disease. [45]

Legal insanity is an excuse that also permits inquiry into a defendant’s capacity to know the law or to exercise free will. It focuses on the individual’s personal characteristics rather than the situation in which she acts.[46] If a person pleads "not guilty by reason of insanity" (NGRI), that plea means that the person had committed the underlying criminal act, but, because of mental illness, should not to be held responsible for that act.[47]

PROVOCATION

Provocation is a 'concession to the frailty of human nature'. [48] In English common law, this defence is satisfied only where the killing is founded on moral indignation or outrage, and, in more recent times, the result of an uncontrolled rage following trivial and, more latterly, grave provocation.[49]

(a) The ‘reasonable excuse’ view

The provocation excuse should be a concession to extraordinary external circumstances. [50] The view is that a defendant who acts having lost of self-control is not fully responsible for his action.[51] Stanley Yeo suggested that this test of ‘loss of control’ requires that the provocative conduct creates in the accused intense anger, panic or fear.[52] When provocation has led to great anger, the excusatory focus is the all-too-human characteristic tendency to act in a spontaneously retaliatory fashion.[53] Anger diminishes self-control.[54] While anger, a person’s state of mind is not within control and hence it is said that having killed in the heat of the moment are less culpable. 'The defence of provocation is for those who are in a broad sense mentally normal'[55] but who snap under the weight of very grave provocation.[56] Where a perpetrator feels anger and suffers loss of self-control to the provocation situation, he should be afforded a defence of provocation. However, in the face of similar provocation, the perpetrator ought not to act in worse a way than the reasonable man would have done.

(b) The ‘justification’ view

It is plausible to judge cases of provocation that the appropriate expression of anger, for those who have suffered severe provocation, might involve some minor violent outburst. For instance, a mother who is told by another that he has raped her child would at least be justified in displaying some anger or outrage for this might be an appropriate manifestation of her anger towards him. In hitting and slapping him she might be entitled to a justification defence. If she kills him on the other hand, it might be argued that she has an excuse.[57] Her action was inappropriate but it was reasonably close to the violent response that would have been justified in the face of severe provocation. The justification ought to go not to the action itself but rather to the loss of self-control.[58]

DIMINISHED RESPONSIBILITY AND INTOXICATION

Where persistent substance abuse has given rise to brain damage or psychosis on the part of D the court in Tandy[59] and Inseal[60] accepted that alcoholism is a disease falling within section 2 of the Homicide Act 1957. This mean that a state of intoxication brought on by alcohol could, in the case of an alcoholic be a foundation for a finding of substantial impairment of responsibility. However, this will only be the case if the consumption was “involuntary”.[61] Involuntary intoxication occurred where the D is unaware of the intoxicant because it is secretly concealed in a soft drink, administered without consent, the result of automatism or the unforeseen effect of medication.[62] In Kingston[63], the court ruled that D was not responsible for an indecent assault he had perpetrated as he was involuntarily intoxicated.

WITHDRAWAL BY A SECONDARY PARTY

The law has always recognised that a person who has embarked on a criminal enterprise may withdraw from it and save himself from a criminal liability in respect of it. The modern law on withdrawal was addressed in Becerra and Cooper[64] where Roskill LJ stated that an effective withdrawal must: “serve unequivocal notice on the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw”. These principles were followed in O'Flaherty[65], and in this decision Mantell LJ held that, 'a person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime, here murder, should not be liable for that crime'.

The Law Commission has suggested that in the case of assistance such a defence should only be available if the secondary party takes all reasonable steps to prevent the commission of the crime he has assisted.[66]Where the accused decides to withdraw long before the commission of the offence, a defence should be afforded where he makes it very clear to the others that any further activity will go ahead without assistance from the accused. Where the offence is about to be committed the defence should be afforded where the accused try to prevent the commission of the offence by force if necessary.

CONCLUSION

As Paul Robinson has stated: ‘an actor’s conduct is justified; an actor is excused’. It is said that to amount to a justification so that a defence will be afforded, the defendant must have both guiding and explanatory reasons for being justified, and the guiding reason must correspond with the explanatory reasons.[67] While excused is analogous to justification, excuses excuse the act or omission amounting to wrongdoing, by shedding favourable moral light on what D did through focus on the reasons that D committed that wrongdoing, where those reasons played a morally ‘active role’ in D’s conduct.[68] Where a perpetrator either a principal of secondary offender is able to prove that his act is either justified or excused, there is strong reasons that a defence should be afforded.

Bibliography

Books

Fletcher, GP, and JD Ohlin, Defending Humanity: When Force is Justified and Why?, Oxford University Press, New York, 2008.

Gardner, J, ‘Justifications and Reasons’, Oxford University Press, Oxford, 1998, pp.118-122.

Hart, HLA, Punishment and Responsibility: Essays in the Philosophy of Law, Clarendon Press, Oxford, 1968.

Herring, J, Criminal Law, 3rd edn, Oxford University Press, New York, 2008.

Horder, J, ‘Excusing Crime’, Oxford University Press, Oxford, 1998, pp. 8-12.

Lacey, C Wells and O Quick, Reconstructing Criminal Law, 4th edn, Cambridge University Press, New York, 2010.

Loveless, J, Criminal Law, Oxford University Press, New York, 2008.

Molan, MT, and M Molan, Cases and Material on Criminal Law, 3rd edn, Cavendish Publishing, London.

Sangero, B, Self-Defence in Criminal Law, Hart Publishing, Oxford, 2006.

Singer, RG, and JQL Fond, Criminal Law, Aspen Publisher, New York, 2007, p.476.

Uniacke, S, Permissible Killing: The Self-Defence Justification of Homicide, Cambridge University Press, Cambridge, 1998.

Journal Articles

Ashworth, A, ‘The Doctrine of Provocation', Criminal Law Journal, vol.35, 1976, p. 292.

Burnet, D, ‘Conjoined twins, sanctity and quality of life, and invention the mother of necessity’, Child and Family Law Quarterly, vol.13, no.1, March 2001, p.91.

Dressler, J, 'Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits', Southern California Law Review, vol.62, no.1331, pp. 1349-1367.

Edwards, SM, ‘Abolishing Provocation and Reframing Self-Defence – the Law Commission’s options for Reform’, Criminal Law Review, 2004, p. 182.

Elliot, C, ‘What Future For Voluntary Manslaughter?’, Journal of Criminal Law, vol.68, June 2004, p.253.

Funk, TM, ‘Justifying Justification’, Oxford Journal of Legal Studies, vol.19, December 1999, p.630.

Gough, S, ‘Taking the Heat out of Provocation’, Oxford Journal of Legal Studies, vol.19, 1999, p.481.

Heaton, R, ‘Anything Goes’, Nottingham Law Journal, vol.10, no.2, 2001, p. 50.

Hitchler, HH, ‘Necessity as a defence in Criminal Cases’, Dick Law Review, vol.33, 1929, p. 183.

Horder, J, ‘Reshaping the Subjective Element in the Provocation Defence’, Oxford Journal of Legal Studies, vol.25, March 2005, p.123.

Huxley, PHS, ‘Porposals and Counter Proposal on the Defence of Necessity’, Criminal Law Review, 1978, p.145.

Kugler, I, ‘Necessity as a Justification In Re A (Children)’, Journal of Criminal Law, vol.68, October 2004, p.68.

Leverick, F, ‘Defending Self Defence’, Oxford Journal of Legal Studies, vol. 27, September 2007, p.563.

Neal, L, and M Bagaric, ‘Provocation: The Ongoing Subservience of Principle to Tradition’, Journal of Criminal Law, vol. 67, June 2003, p.237.

Nourse, ‘Self-Defense and Subjectivity’, University of Chicago Law Review, vol. 68, 2001, p. 1235.

Radden, J, ‘Disease as excuses: Durham and The Insanity Plea’, Journal of Philosophical Studies, vol.42, no.2, November 1982, pp.349-362.

Sullivan, GR, ‘Intoxicants and Diminished Responsibility’, Criminal Law Review, 1994, p.157.

Tadros, ‘The Characters Of Excuse’, Oxford Journal of Legal Studies, vol.21, September 2001, p.495.

Uniacke, S, 'Law and Excuses’, Journal of. Applied Philosophy, vol. 26, 1989, p.95-117.

Wallerstein, S, ‘Justifying the Right to Self Defence: A Theory of Forced Consequences’, Virginia Law Review, vol. 91, no. 999, 2005, pp. 1032-1034.

Watson, M, ‘Self-defence, reasonable force and the police’, New Law Journal, vol. 147, no. 6814, October 1997, p1593.

Walters, L, ‘Duress - Precedent, Principle and the House of Lords’, New Law Journal, vol. 136, no. 6275, October 1986, p. 959.

Yeo, S, ‘Case and Comment: Peisley’, Criminal Law Journal, vol. 16, 1992, p. 199.

Website Sources

Perlin, ML, ‘Excuse: Insanity - Development Of Insanity Defense Doctrine, Post-m'naghten Developments., Hinckley And Its Aftermath’, JRANK, (n.d.), retrieved 15 June 2010, <http://law.jrank.org/pages/1141/Excuse-Insanity.html>

Seligman, K, The Insanity Defence, SFGate, 2002, retrieved 14 June 2010, <http://articles.sfgate.com/2002-03-17/news/17537355_1_insanity-defense-yates-trial-andrea-yates>

[1] J Herring, Criminal Law, 3rd edn, Oxford University Press, New York, 2008, p.630.

[2] ibid., 695.

[3] I Kugler, ‘Necessity as a Justification In Re A (Children)’, Journal of Criminal Law, vol.68, October 2004, p.68.

[4] Herring, op.cit., p. 702.

[5] GP Fletcher and JD Ohlin, Defending Humanity: When Force is Justified and Why?, Oxford University Press, New York, 2008, p.63.

[6] Lacey, C Wells and O Quick, Reconstructing Criminal Law, 4th edn, Cambridge University Press, New York, 2010, p.810.

[7] J Loveless, Criminal Law, Oxford University Press, New York, 2008, p.423.

[8] [2000] 4 All ER 961

[9] S Uniacke, Permissible Killing: The Self-Defence Justification of Homicide, Cambridge University Press, Cambridge, 1998, p.50.

[10] F Leverick, ‘Defending Self Defence’, Oxford Journal of Legal Studies, vol. 27, September 2007, p.563.

[11] Nourse, ‘Self-Defense and Subjectivity’, University of Chicago Law Review, vol. 68, 2001, p. 1235.

[12] S Wallerstein, ‘Justifying the Right to Self Defence: A Theory of Forced Consequences’, Virginia Law Review, vol. 91, no. 999, 2005, pp. 1032-1034.

[13] B. Sangero, Self-Defence in Criminal Law, Hart Publishing, Oxford, 2006, p.376.

[14] M Watson, ‘Self-defence, reasonable force and the police’, New Law Journal, vol. 147, no. 6814, October 1997, p.1593.

[15] [1971] Ch 734

[16] D Burnet, ‘Conjoined twins, sanctity and quality of life, and invention the mother of necessity’, Child and Family Law Quarterly, vol.13, no.1, March 2001, p.91.

[17] [2000] 4 All ER 961

[18] Herring, op.cit., 744.

[19] S Gardner, ‘Direct Action and the Defence of Necessity’, Criminal Law Review, vol.371, 2005, pp. 379-382

[20] ibid.

[21] [1990] 2 A.C.1.

[22] MT Molan and M Molan, Cases and Material on Criminal Law, 3rd edn, Cavendish Publishing, London, p.648.

[23] [1969] V.R.667

[24] Law Commission Legislating the Criminal Code: Offences against the Person and General Principles, Law Com. No.218, London, HMSO, 1993, p.63.

[25] HH Hitchler, ‘Necessity as a defence in Criminal Cases’, Dick Law Review, vol.33, 1929, p. 183.

[26] PHS Huxley, ‘Porposals and Counter Proposal on the Defence of Necessity’, Criminal Law Review, 1978, p.145.

[27] U.S. v Holmes, 26 Fed. Cas. 360 (1842)

[28] TM Funk, ‘Justifying Justification’, Oxford Journal of Legal Studies, vol.19, December 1999, p.630.

[29] J. Dressler, 'Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits', Southern California Law Review, vol.62, no.1331, pp. 1349-1367.

[30] Loveless, op.cit., p.386.

[31] [1985] Crim. L.R. 220

[32] L Walters, ‘Duress - Precedent, Principle and the House of Lords’, New Law Journal, vol. 136, no. 6275, October 1986, p. 959.

[33] HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law, Clarendon Press, Oxford, 1968, pp.22-23.

[34] [1982] 1 WLR 294

[35] Herring, op.cit., p.657.

[36] [1999] Crim LR 570

[37] Ibid., p.740.

[38] K Seligman, The Insanity Defence, SFGate, 2002, retrieved 14 June 2010, <http://articles.sfgate.com/2002-03-17/news/17537355_1_insanity-defense-yates-trial-andrea-yates>

[39] [1843] 10 Cl & R 200; 8 ER 718

[40] Herring, op.cit., 679.

[41] J Radden, ‘Disease as excuses: Durham and The Insanity Plea’, Journal of Philosophical Studies, vol.42, no.2, November 1982, pp.349-362.

[42] Sullivan [1983] 2 All ER 673

[43] Herring, op.cit., 680.

[44] [1952] 2 QB 826

[45] Radden, loc.cit.

[46] RG Singer and JQL Fond, Criminal Law, Aspen Publisher, New York, 2007, p.476.

[47] ML Perlin, ‘Excuse: Insanity - Development Of Insanity Defense Doctrine, Post-m'naghten Developments., Hinckley And Its Aftermath’, JRANK, (n.d.), retrieved 15 June 2010, < http://law.jrank.org/pages/1141/Excuse-Insanity.html>

[48] L Neal and M Bagaric, ‘Provocation: The Ongoing Subservience of Principle to Tradition’, Journal of Criminal Law, vol. 67, June 2003, p.237.

[49] SM Edwards ‘Abolishing Provocation and Reframing Self-Defence – the Law Commission’s options for Reform’, Criminal Law Review, 2004, p. 182.

[50] C Elliot, ‘What Future For Voluntary Manslaughter?’, Journal of Criminal Law, vol.68, June 2004, p.253.

[51] S Uniacke, 'Law and Excuses’, Journal of. Applied Philosophy, vol. 26, 1989, p.95-117.

[52] S Yeo, ‘Case and Comment: Peisley’, Criminal Law Journal, vol. 16, 1992, p. 199.

[53] J Horder, ‘Reshaping the Subjective Element in the Provocation Defence’, Oxford Journal of Legal Studies, vol.25, March 2005, p.123.

[54] op.cit., pp. 974-975

[55] A. Ashworth, ‘The Doctrine of Provocation', Criminal Law Journal, vol.35, 1976, p. 292.

[56] R Heaton, ‘Anything Goes’, Nottingham Law Journal, vol.10, no.2, 2001, p. 50.

[57] S Gough, ‘Taking the Heat out of Provocation’, Oxford Journal of Legal Studies, vol.19, 1999, p.481.

[58] V Tadros, ‘The Characters Of Excuse’, Oxford Journal of Legal Studies, vol.21, September 2001, p.495.

[59] [1989] 1 All E.R. 267

[60] [1992] Crim. L.R. 35

[61] GR Sullivan, ‘Intoxicants and Diminished Responsibility’, Criminal Law Review, 1994, p.157.

[62] Loveless, op.cit., p.360.

[63] [1933] N.L.J.R. 724

[64] (1976) 62 Cr App R 212

[65] [2004] EWCA Crim 526, [2004] Crim LR 751.

[66] Law Com. No. 131, at 124

[67] J Gardner, ‘Justifications and Reasons’, Oxford University Press, Oxford, 1998, pp.118-122.

[68] J Horder, ‘Excusing Crime’, Oxford University Press, Oxford, 1998, pp. 8-12.

Why is defence afforded to a perpetrator of a criminal act whether he is a principal or secondary offender?

Table of Statutes

This is a preview of the whole essay

(ii) Necessity as an excuse – Duress of circumstances

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