Defence - Justifications and excuses

Question 1

Justification

Answer 1

Negate wrongfulness of the act (there was no harm done) :

• Self-defence
• Necessity
• Consent, legal authorization, superior order…

Question 2

Excuse

Answer 2

Negates blameworthiness of the actor (personal) :

• Duress
• Insanity
• Excessive self-defence

Question 3

Common law

Answer 3

No clear distinction

Complete defences :
- Infancy, self-defense, necessity, duress, insanity

Partial defences :
- Diminished responsibility, loss of control

Question 4

Self-defence

Answer 4

Protection of life, limb, sexual integrity and property

1. Imminence of unlawful attack
2. Against legitimate interests
3. Subsidiarity
4. Proportionality

Question 5

Necessity (as a justification)

Answer 5

Justifies invasion against the interest of a totally innocent party (choose the lesser of 2 evils)

Proportionality should apply but the law can not weigh the value of lives

Common law :

1. Act was needed to avoid inevitable and irreparable evil
2. No more was done than necessary
3. The evil inflicted was not disproportionate to the evil avoided
   (4. Extraneous circumstances)

Question 6

Duress

Answer 6

Restricted to saving life, limb, liberty of one self or close persons

Common law :

1. Duress by threat - Would a reasonable person react the same ?
2. Duress of circumstances
3. NOT FOR MURDER !

Question 7

Insanity

Answer 7

Does not know that what he is doing is wrong

Question 8

Intoxication

Answer 8

Dutch courage - Not an excuse

Crimes under the influence of intoxication: You are responsible for drinking in the first place

Germany - Requires prior fault or ‘reasonably anticipated’
323a GCC requires above 3.0 BAC

Question 9

Necessity as an excuse

Answer 9

Common law - Duress:

• Duress by threats or circumstances
• Not available for murder

Restricted to the saving of life, limb or liberty