In broad terms, the prosecution in a criminal case bears the burden of proving not only that the defendant
acted with the relevant fault ingredient for the individuated crime in question, but also to disprove any
defence in support of which evidence is propounded. Defences apply consequentially to ensure that only
the blameworthy are punished in accordance with culpability thresholds, and that blameless individuals are
not unjustly punished for propagating a social harm. Exculpatory evidence may be adduced as justification
(necessity or self-defence), by way of total excuse (duress or insane automatism), potentially as partial excuse
(intoxication or diminished responsibility), or mitigation.
General defences have developed in England and Wales in a solipsistic ad-hoc manner, and haphazardly
rather than in a coherent structure. Extant law reveals significant problems in adoption of consistent approaches
to doctrinal and theoretical underpinnings of general defences. This has been exemplified by a plethora of
recent jurisprudential authorities revealing varying degrees of confusion and vacillation. A variety of Law
Commission proposals for bespoke defences, although emboldening the debate, have yet to be adopted in
any logical template. This book’s chapters by individual contributors, domestic and comparative, explore the
fundamental precepts of general defences and cover a range of key issues within the spectrum of exculpatory
behaviour. This includes England and Wales, Scotland and Ireland, as well as alternative approaches from
several foreign jurisdictions.
In Chapter 1, ‘How Criminal Defences Work’, William Wilson considers the various attempts made to
establish some core unifying rationale to criminal defences capable of providing a blueprint for both their
development and constituent elements. In this chapter, it is argued that it may be more helpful to draw attention
to those constant elements in the constitution of criminal defences which quite understandably, if erroneously,
have lent support to the view there is a unified rationale rather than a collection of different claims to avoid
punishment. These constant elements typically include requirements such as reasonableness, immediacy, and
a triggering condition, which serve to distinguish true defences from quasi-defences rooted in the defendant’s
personality or psychological make-up. Crucially, these constant elements support the alternative view that the
various rationales of criminal defences complement, rather than compete with, each other. They create the
conditions by which the actor may support the actor’s claim that his conduct was justified; that he lacked the
capacity or fair opportunity of conforming to the standards demanded; that he did not betray the standards
of character which we have come to expect of ordinary decent citizens; or that his conduct was truly out of
character.
Bob Sullivan, in Chapter 2, ‘Avoiding Criminal Liability and Excessive Punishment for Persons Who
Lack Culpability: What Can and Should Be Done?’, argues that a finding of culpability requires proof that the
defendant (D) stands in some form of blameworthy relationship with a wrong. A wrong requires some setback
or threat of imminent setback to the legally protected interests of individuals, organisations, or society at large.
(The wide ranging content of modern criminal law includes many offences which may be committed without
instantiating a wrong in the sense identified above. These offences fall beyond the scope of the chapter.
Offences of strict liability which encompass wrongs in the sense identified above are within the scope of the
chapter.)
Situations will arise where D appears to be in some form of blameworthy relationship with a criminal
wrong. To deflect findings that he was culpable, he may claim that defining elements of the wrong were
not present, or that aspects of his personhood undermine any blame for his wrongs, or that because of
the circumstances in which he found himself, conformity with the criminal law was not to be expected.
Alternatively, he may assert that what ordinarily would constitute a wrong was in the circumstances the right
thing to do. The scope and content of the general defences made available under English criminal law will be
assessed in terms of their reliability as indicators of non-culpability for wrongs. Cases of underinclusiveness
will be identified and some inclusionary proposals will be made. However, not all forms of non-culpability
can be accommodated within a rule based system of criminal law.