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Offences and defences

Published online by Cambridge University Press:  02 January 2018

Glanville Williams
Glanville Williams*
Affiliation:
University of Cambridge
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What, if any, is the distinction between offences and exculpatory defences, between definitional elements and defence elements, between rules and exceptions? In recent years the courts have shown a tendency to attach legal importance to this distinction, even as a matter of substantive law. But ought it to have this importance, and anyway is it usable?

On their face, exculpatory defences often relate to the same kind of question as the inculpation provisions of the criminal law. The offence-creating provision states what must or must not, in general, be done; the exculpatory provision states the limits of the prohibition in particular circumstances. As Professor Paul Robinson expresses it, in a long and learned article on defences, defences ‘refine the wording of the offence’; they ‘provide a more sophisticated account, when needed, of the harm or evil sought to be prohibited’. But the refinements may be expressed in the provision itself, as well as in the defences.

Type
Research Article
Information
Legal Studies , Volume 2 , Issue 3 , November 1982 , pp. 233 - 256
Copyright
Copyright © Society of Legal Scholars 1982

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References

1. 82 Col L Rev at 209.

2. [1976] AC 182.

3. Cf. Magistrates' Courts Rules 1968 No. 1920, r.1(3).

4. Fletcher, George P., Rethinking Criminal Law (Boston, 1978) p. 530 Google Scholar.

5. Op. cit. p. 545.

6. [1935] AC 462.

7. Coughlan [1976] Crim LR 631; Iremonger v Vissenger, [1976] Crim LR 524. For American opinions that the burden of proof in respect of non-exculpatory defences may properly be placed on the defendant see Robinson, 82 Col L Rev at 199, 258 n. 220, 261. This may not be objectionable for defences of time-bar and previous acquittal; but should not the prosecution bear the burden on an issue of previous conviction? Justice demands that the same offence should not be punished twice.

8. Section 1. 13(9).

9. For the history see Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 at 134–136; for an illustration see Baker v Sweet [1966] Crim LR 51.

10. [1975] QB 27. For criticisms see 126 NLJ 1032.

11. Previously the burden had been thought to be evidential only. See Adams in Essays on Criminal Law in New Zealand, ed. R. S. Clark, pp. 83–84.

12. We owe our present understanding of this distinction to Fletcher. I have made my own contribution to the discussion in an article to be published shortly in the Criminal Law Review.

13. Oxford v Lincoln (1982) Times, 1 March.

14. Op. cit., n. 1 above, 199.

15. Op. cit. at 220.

16. Cf. p. 270 orRobinson's article, where he seems to see the light.

17. Cmnd. 4991 of 1972, Draft Bill c1.8.

18. Cmnd. 6244 of 1975, paras. 18. 39–18. 41.

19. Op. cit., n. 4 above, pp. 576–577.

20. [1902] 2 KB 743.

21. CC Emary v Nolloth [1903] 2 KB 264: thr employee of a licensee, contrary to thr latter's express orders, knowingly supplied liquor to a child under 14 in an uncorked vessel. Held, that the licensee was not guilty or ‘knowingly allowing’ the act. If he had known of the sale, but believed the vessel to be sealed, he would have been guilty; when he did not know of the actual sale, and believed that all sales were legal, he was not guilty!.

22. (1870) LR 5 CP 489.

23. [1951] 2 KB at 152.

24. Gaumont British Distributors Ltd v Henry [1939] 2 KB 711; Williams Criminal Law: The General Part (2nd edn) para. 61.

25. [1976] AC 182.

26. 65 LQR 491.

27. It is possible that the courts were misled by the bigamy section, which muddleheadedly duplicates some of the elements of the offence in the defences. See Bernard Jackson in [1979] Crim LR 627, n. 37.

28. Sellers in 41 MLR 250.

29. [1981] 2 WLR 509.

30. Williams Criminal Law: The General Part (2nd edn) p. 156 n.1, p. 219 n.2.

31. E.g. Derbyshire v Houliston [1897] 1 Q B 722.

32. Albert v Lavin [1981] 2 WLR at 1083H.

33. Op. cit., n.4 above, p. 701.

34. The Model Penal Code s.309(2) allows conviction of an offence of negligence in cases of unreasonable mistake in a defence.

35. 14th Report (OAP), Cmnd. 7844 of 1980, paras. 282, 284.

36. MPC SS. 3.02; 3.04; 3.05; 3.06; 3.07.1,5; 308.2; Fletcher op. cit. pp. 689–670.

37. [1982] 3 WLR 10, especially at 46B-D, 48E.

38. [1973] RTR 171.

39. (1850) 3 C & K 148, 175 ER 499, 2 Den 35, 169 ER 407. Contra, Murphy (1839) 1 Craw & Dix 20 (Ir). For discussions see Williams Criminal Law: The General Part (2nd edn) p. 12; Robinson in 23 UCLA L Rev 288 ff.; reply by Fletcher, ibid. 293; Smith, A. T. H. in Reshaping the Criminal Law, ed. Glazebrook, (London, 1978) p. 99 Google Scholar.

40. Clarke [1950] 1 KB 523. This is still important on the point of principle even though it was decided on legislation now repealed.

41. Smith and Hogan Criminal Law: Cases and Materials (2nd edn) p. 4, query the workability of the test of what ‘the law wishes’. ‘The “law wishes to promote” the execution of the condemned man, but does it wish to promote the wounding of escaping felons (now arrestable offenders)?’ It will be noticed that the authors seem to find no difficulty in ack- nowledging that with capital punishment the law wishes to promote the execution of offenders. Their question refers to the facts of Dadson, where the arrester wounded the supposed felon in the leg. But the question is surely misdirected. Of course the law did not want felons to be wounded, but that is not the question. The question is whether it wanted them arrested, and was prepared to tolerate their wounding if that was necessary to arrest them; and the rules of law on the subject plainly showed that that was the purpose of the law.

42. RTA 1972, s.5(5) as substituted by the Transport Act 1981, Sch. 8.

43. Fletcher op. cit., n.4 above, pp. 563–566.

44. See 56 Col L Rev 1129, reprinted in Essays in Legal Philosophy, ed. Sumners, R. B. (Oxford, 1968) p. 121 Google Scholar.

45. See the article referred to at n.12 above.

46. Per Holt CJ in Tooley (1709) 2 Ld Raym at 1302, 92 EK at 35, 11 Mod at 251, 88 ER at 1020. (The report in Modern misprints ‘a provocation’ as ‘no provocation’.).

47. ‘The actual decision was that (1) an unlawful arrest is provocation for the killing of the arrester, and (2) that it is provocation even though the killer does not know that the arrest is unlawful. The decision is no longer law on the first point: the mere fact of an unlawful arrest does not now automatically count as provocation: Allen (1867) 17 LT at 225–226. And it is wrong on principle on the second point, since provocation, like duress and unlike private defence, is an excuse, not a justification, and is therefore a defence based primarily on what the defendant believed. See Foster's opinions, discussed by Ashworth in [1978] Crim LR 395.

48. [1977] AC at 138A.

49. 14th Report, Cmnd 7844 of 1980, para. 283.

50. As Lord Hailsham did in Morgan [1976] AC at 214F; he used the marks not only for the defence of mistake but also, oddly, for self-defence and provocation which are clearly defences. Probably his hesitation was due to the fact that the burden of neqativing these defences rests on the prosecution, but it would he undesirable to link the word ‘defence’ with questions of burden of proof.

51. Martin (1881) 8 QBD at 58.

52. E.g. Dibble v Ingleton [1972] 1 QB at 488, quoting Lord Parker CJ.

53. [1981] 2 WLR at 1083F.

54. [1976] AC 182.

55. Per Lord Denman in Christopherson v Bare (1848) 11 QB 473, 116 ER 554: ‘It is a manifest contradiction in terms to say that the defendant assaulted the plaintiff by his permission’. See also Attorney-General's Reference (No. 6 of 1980) [1981] QB 712. (The court erred in linking this proposition to the burden of proof at common law.).

56. Fletcher op. cit, p. 567. Contrast ibid. pp. 704–705. where Fletcher produces. a different theory of the definition of rape. The true definition, we are now told, is sexual penetration, with consent functioning as a ground for regarding the sexual act as a shared expression of love, rather than as an invasion of bodily integrity. The language is cloudy, but Fletcher here seems to assert that the issue of consent relates to a defence (criticising, on this view, the decision in Morgan). However, he immediately has doubts (p. 707), reminiscent of his earlier position. He says that a justification functions as an exception to the prohibitory norm, and usually represents a good reason for inflicting harm. However, he adds that consent to sexual contact is the normal case, and the consent here dissolves the harm. Having asserted these points, and without answering them, Fletcher goes back to his proposition that mistake as to consent must be reasonable.

57. [1981] 2 WLR at 1083E.

58. See the article cited above. n.12.