ABSTRACT
In the last chapter, certain special defences such as provocation and diminished responsibility were examined. In this chapter attention is focused on the defences which do not relate to specific crimes such as homicide but have a relevance to crimes in general. Most academic commentators and the Law Commission’s draft Criminal Code emphasise the twin themes of justification and excuse as a basis for the existence of most defences. In the former case, it is argued that although the accused possessed the mens rea for the offence and caused the actus reus there is a justification which should preclude a conviction. A good illustration is where the accused pleads self-defence. Imagine the case of a defendant (D), who, returning home after an enjoyable evening at the theatre, finds himself confronted with a gang of would be robbers who have entered his property and are holding his wife hostage. He is threatened that unless he reveals the whereabouts of the key to his safe his wife will have her throat cut. He refuses and one of the men moves menacingly towards his wife and as he does so pulls a knife from his pocket. D picks up a poker from the hearth and hits one of the robbers over the head killing him instantly. The second robber seeks to escape but is pursued and caught. It transpires that both men were carrying knives. Is it really accurate to say that D has engaged in wrongful conduct? Would ordinary people regard with abhorrence the action that D took upon himself? Should he not be applauded for seeking to protect his wife from a potentially murderous attack? His conduct should not be regarded as unlawful. He was justified in taking the action he did.
