justifications and excuses

Question 1

rationales for self-defence

Answer 1

• right of self preservation
• the approach of forfeiture in the Anglo-American system
  
  • the aggressor by his conduct has lost his right to life or a claim to that right
• 2nd variation of forfeiture
  
  • because the aggressor is responsible for the danger the value of his rights is reduced when balancing the competing interest at stake

Question 2

criteria for self defence

Answer 2

1. attack must be wrongful, imminent and infringe an individual interest
2. subsidiarity/ necessity requirement = defendant is allowed to use the least intrusive means of defence
3. defendant must act in line with the requirements of proportionality
   
   • focuses on the gravity of the attack, addressing the ration of interest threatened on the side of both parties
   • choice of defensive means

Question 3

SD criteria - wrongful attack

Answer 3

• an immediate threat to a legally protected interest through human behaviour

Question 4

SD criteria - ongoing

Answer 4

• the attack is ongoing until the aggression has factually been completed either by abandoning the attempt, its failure or by causing the definite violation of the protected interest

Question 5

legitimate interests

Answer 5

• undisputed legal interests
  
  • life, liberty, body and property
• dutch law lists interests that can be protected - 32 DCC

Question 6

self defence- reasonableness requirement - England

Answer 6

• self-defence can only succeed if the defendant used reasonable force against the attack
• the necessity of applying force should be assessed on the basis of the danger the defendant took to be present
• force used needs to be proportional to the circumstances
  
  • reasonable force is decided by the jury

Question 7

self-defence excess

Answer 7

• if the defendant is overpowered by emotions and exceeds the limit of proportionality, civil law systems accept the possibility to invoke this

England no have

Question 8

intensive excess

Answer 8

• the degree of necessary force is exceeded
  
  • e.g. the defendant shoots the aggressor multiple times in his torso when the attack could have been averted by a shot at the legs

Question 9

extensive excess

Answer 9

• defendant either continues after the attack ha ended or only reacts after the attack has ceased

Question 10

state of mind caused by the attack

Answer 10

• excessive force must have been a consequence of a specific state of mind directly caused by the attack
• sthenic feelings = active emotions
  
  • e.g. anger, rage
  • excluded from GCC because it might set free latent feelings of aggression
• asthenic feelings = passive feelings that paralyse people
  
  • e.g. fear, confusion, desperation

Question 11

partial defence - England

Answer 11

• loss of control
  
  • only of rmurder
• diminished responsibility
  
  • only for murder

Question 12

loss of control

Answer 12

• coroners and justice act 2009
  
  • subjective test = requires that the killing was the result of loss of self control which was caused by a qualifying trigger like an attack or provocation
  • normative test = requires that loss of self-control was in accordance with the reasonable man standard

Question 13

diminished responsibility

Answer 13

• coroners and justice act 2009
• rationale for diminishing responsibility is the mandatory life sentence for murder
• test of double causation = defendant must have killed because his mental faculties were sustainably impaired as a result of an abnormality of mental functioning due to a recognised medical condition

1. impaired ability ti understand one’s conduct
2. impaired ability to form a rational judgement
3. impaired ability to exercise self-control

Question 14

necessity

Answer 14

• applies in a situation of actual danger to legal interests which danger can only be averted by infringing less valuable interests of third parties
• faced with two unpleasant alternatives where the defendant has to decide to break the law in order to avoid a more serious evil to himself or other

subsidiarity / proportionality

DE= hijacked plane case

Dudley and stevens

R v A (children)

Question 15

necessity criteria

Answer 15

1. there must be a present danger for a legitimate interest
2. subsidiarity = the defence must be capable of ending the danger and the be the least intrusive means of aversion
3. proportionality = the defendant should chose the lesser of two evils

Question 16

duress

Answer 16

the defendant was under such pressure that he could not reasonably be expected to abide by the law
e.g. the defendant is threatened that if they do not commit the offence they or someone close to them will get hurt

based on the rationale of psychological pressure

Question 17

duress criteria

Answer 17

1. defendant committed the offence because he was impelled by an imminent danger to a legitimate interest
   
   • England and Germany = the danger that is averted must be directed against life, limb or personal liberty
   • Netherlands = legal interests are not excluded from being protected under duress a priori but the scope of the defence is limited through the other conditions such as proportionality
2. there must be imminent danger
   
   • any extraneous force, urge, threat or pressure which a legal subject cannot offer resistance
3. subsidiarity
4. proportionality

applies to murder in civil law but not England

Question 18

insanity

Answer 18

defendant does not have the capacity to be held responsible due to a mental disorder

Question 19

insanity criteria

Answer 19

1. offence should be attributed to a mental disorder
2. impaired capacities
   -English law limited to evaluative or cognitive capacities
   
   • R v M’Naghten
   • doesn’t know it is wring because of the impaired state
3. attribution and prior fault

civil has broader scope because they accept volitional England only cognitive

Question 20

diminished capacity

Answer 20

defendants capacities have been impaired by a disorder but not to the extent of legal irresponsibility

Question 21

justification vs excuse

Answer 21

excuse is personal

justification is universal

Question 22

self defence England

Answer 22

• wrongful imminent attack
• force applied should be reasonable
  
  • necessary and proportional
• jean Charles de men zes

Question 23

tripartite structure

Answer 23

1. Act fits definition of the offence / factual denials
2. The act was unlawful / defences of justification
3. Perpetrator is blameworthy / defences of excuse

Question 24

M’Naghten rule

Answer 24

• At the time of committing the act, the accused party was labouring under such a defect reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or if he did know that he did not know what he was doing wrong
• only addresses cognitive impairment

Question 25

M'Naghten critique

Answer 25

- Outdated 19th century rule - Only full defences, no partial - No volitional impairment accepted- e.g. cleptomania, addiction - Jury decides

Question 26

Insanity in Germany

Answer 26

- Pathological mental disorder - Schizophrenia, dementia, manic depression - Profound consciousness disorder - Extreme panic, intoxication - Mental deficiency - Low IQ - Any other serious mental abnormality - Neuroses, personality disorders, kleptomania, pedophilia