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This 3-page document contains definitions and examples of offences and defenses in English Common Law and applies to Commonwealth countries like the UK, NZ and Australia. Useful for beginner Law and Forensic Psychology students.
BASIC LAW CONCEPTS: OFFENCES & DEFENSES
The difference between a criminal and a civil wrong is not the nature of the wrongful act but the legal consequences that may follow it
(Williams, 2006). They are not mutually exclusive: Someone can be prosecuted for a crime and simultaneous civil action can be taken for a
concurrent tort should it exist.
In order to properly evaluate any legal case, one should look at the details involving four key points: The name of the offence, the actus
reus (guilty act), the mens rea (guilty mind or intentionality), the possible defences, the punishments. (Williams, 2006).
In English law, property damage was originally a common law offence and liability was restricted to the payment of damages by way of
compensation. Punishments always include monetary compensation and range from a fixed penalty to life imprisonment (REF 3)
Under the traditional common law, the guilt or innocence of a person relied upon whether they had committed the crime, actus reus, and
whether they intended to commit the crime, mens rea. An act can consist of commission, omission or possession.
Likewise, there are different levels of mens rea called modes of culpability which vary depending on the offense elements of the crime: the
conduct, the circumstances, and the result (REF 4).
ACTUS REUS = OFFENCES
Main articles: Murder and Culpable homicide
A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many
jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. Malice is a
required element of murder. Manslaughter is a lesser variety of killing committed in the absence of malice, brought about by reasonable
provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated
guilty intent, recklessness. Settled insanity is a possible defense.
Main articles: Assault, Battery (crime), Rape, and Sexual abuse
Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally understood as an unlawful touching,
although this does not include everyday knocks and jolts to which people silently consent as the result of presence in a crowd. Creating a
fear of imminent battery is an assault, and also may give rise to criminal liability. Non-consensual intercourse, or rape, is a particularly
egregious form of battery.
Main articles: Criminal damage, Theft, Robbery, Burglary, and Fraud
Property often is protected by the criminal law. Trespassing is unlawful entry onto the real property of another. Many criminal codes
provide penalties for conversion, embezzlement, theft, all of which involve deprivations of the value of the property. Robbery is a theft by
force. Fraud in the UK is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by abuse of position.
Main articles: Accomplice, Aid and abet, and Inchoate offenses
Some criminal codes criminalize association with a criminal venture or involvement in criminality that does not actually come to fruition.
Some examples are aiding, abetting, conspiracy, and attempt.
MENS REA = CULPABILITY
Direct intention - the actor has a clear foresight of the consequences of his actions, and desires those consequences to occur. It's his aim or
purpose to achieve this consequence (death).
Oblique intention - the result is a virtually certain consequence or a 'virtual certainty' of the defendant's actions, and that the defendant
appreciates that such was the case..
Knowingly - the actor knows, or should know, that the results of his conduct are reasonably certain to occur
Recklessness - the actor foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those
consequences actually occur or not
Criminal negligence - the actor did not actually foresee that the particular consequences would flow from his actions, but a reasonable
person, in the same circumstances, would have foreseen those consequences.
MENS REA = INTENTIONALITY
The test for the existence of mens rea may be:
(a) subjective, where the court must be satisfied that the accused actually had the requisite mental element present in his or her mind at the
relevant time (for purposely, knowingly, recklessly etc) (see concurrence);
(b) objective, where the requisite mens rea element is imputed to the accused, on the basis that a reasonable person would have had the
mental element in the same circumstances (for negligence); or
(c) hybrid, where the test is both subjective and objective.
The court will have little difficulty in establishing mens rea if there is actual evidence – for instance, if the accused made an admissible
admission. This would satisfy a subjective test. But a significant proportion of those accused of crimes make no such admissions. Hence,
some degree of objectivity must be brought to bear as the basis upon which to impute the necessary component(s). It is always reasonable
to assume that people of ordinary intelligence are aware of their physical surroundings and of the ordinary laws of cause and effect (see
causation). Thus, when a person plans what to do and what not to do, he will understand the range of likely outcomes from given behaviour
on a sliding scale from "inevitable" to "probable" to "possible" to "improbable". The more an outcome shades towards the "inevitable" end of
the scale, the more likely it is that the accused both foresaw and desired it, and, therefore, the safer it is to impute intention. If there is clear
subjective evidence that the accused did not have foresight, but a reasonable person would have, the hybrid test may find criminal
negligence. In terms of the burden of proof, the requirement is that a jury must have a high degree of certainty before convicting, defined as
"beyond a reasonable doubt" in the United States and "sure" in the United Kingdom
Mental States - What They Mean to Criminal Charges:
To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the
defendant is given an opportunity to present a defense. A defendant may mount a defense by remaining silent, not presenting any witnesses
and arguing that the prosecutor failed to prove his or her case. Frequently, this is the best and strongest way to proceed. But there are many
other types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing."
The Presumption of Innocence
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty.
This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not
say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes
it difficult for the government to put people behind bars.
Proving Guilt "Beyond a Reasonable Doubt"
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is
very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a
preponderance of the evidence--anything over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and
jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on
the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt--that is, that the prosecutor hasn't done
a sufficient job of proving that the defendant is guilty.
Sometimes, however, a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit
the act in question.
Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with
a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other
person's threatening actions.
The core issues in most self-defense cases are:
Who was the aggressor?
Was the defendant's belief that self-defense was necessary a reasonable one?
If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does
not have to wait until she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that she is
about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable--if
she does, she may be guilty of a crime.
The Insanity Defense
The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior
and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of
knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed
by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they
cause, regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person
genuinely suffers from a mental disorder, and to link mental disorders to the commission of crimes.
The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some
major points of interest: Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." And
when they do, judges and jurors rarely uphold it.
Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the
criminal law context. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from
wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he
cannot control his actions (he's described as acting out of an "irresistible impulse").
Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their
sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been
An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past
history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire
their own psychiatrists. Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests. This can be a
very painful and humiliating experience, one that many defendants choose to forego rather than rely on the insanity defense.
The Influence of Drugs or Alcohol
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that
they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants
know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit
crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires "specific intent"
(intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue
that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the
defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent.
For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly
weapon, which doesn't require specific intent.
The Alibi Defense
An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For
example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi
defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.
Alibi is a perfectly respectable legal defense. Yet to some people the term connotes a phony defense. Defense attorneys usually are careful to
remind jurors that alibi is simply a legal term referring to evidence that a defendant was elsewhere at the time a crime was committed, and
that it in no way suggests falsity.
Alibi is a misidentification claim in which the accused tries to prove s/he was somewhere s/he really weren't , so a jury will believe s/he
weren't where they really were. (That's supposed to be a joke.) Still, the word alibi has a negative connotation. In Latin, "alibi" simply means
"elsewhere in another place." It occurs when the evidence raises the issue that the accused was somewhere other than where the alleged
offense was committed when it was committed, i.e., the defendant was in a place where he couldn't have committed the crime
Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it.
However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a
government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for
defendants with prior convictions for the same type of crime.
Infancy (immaturity) as a defense
The defense of infancy is based on the actor's chronological age at the time of the criminal act. The child may commit an otherwise act with a
culpable mental state, but because we do not regard him as responsible, his act, which might be a serious crime if committed by an adult, is
non-criminal. Common law provides that the child under the age of seven (7) is conclusively presumed incapable of being responsible, i.e., a
child under seven cannot be guilty of a crime. Children seven (7) through thirteen (13) are rebuttably presumed incapable of being
criminally responsible, i.e., between the ages of seven and thirteen, a child is rebuttably presumed incapable of forming a culpable mental
state. Persons fourteen (14) and over are treated as criminally responsible adults. The Model Penal Code, Section 4.10, provides the defense
of immaturity. The basic rule is that one who was less than sixteen (16) at the time of the offense is not triable or convictable for the offense.
Those who were sixteen or seventeen (less than eighteen) at the time of the offense are not triable or convictable in criminal court unless
the juvenile court has waived jurisdiction over them or unless the juvenile court has no jurisdiction over them.
Duress (coercion, compulsion) as a defense
Duress, like insanity, is one of those confession and avoidance defenses. The law of duress recognizes that sometimes we may have to walk
with the devil to get across the bridge. Duress doesn't negate an element of the crime, but rather involves an additional consideration, i.e.,
that the defendant was forced to commit the crime. This is the legal version of the younger child's proverbial excuse - "Mom, he made me do
it." Obviously, in cases of duress, the defendant has an additional motive to commit the crime because of the threat or use of force against
himself or another by a third party. In effect, the defendant says, "I was coerced into committing the crime because I did not want to be hurt
or have another hurt if I didn't commit the crime." Indeed, the threat of harm to himself or another may be the underlying reason why the
accused committed the offense. But motive, in the sense of a reason why, is typically not an element of an offense that the prosecution must
prove. Duress is typically viewed as an excuse, rather than a justification for crime.
Acting under superior orders as a defense
Voltaire said ,"It is forbidden to kill, therefore, all murderers are punished, unless they kill in large numbers and to the sound of trumpets."
Killing the enemy in wartime is deemed justifiable homicide. See Section 9.21(c) TPC. Forces in wartime are structured so that soldiers
(combatants) take orders from their superior officers. Yet, the international law of war seems to require that the subordinate refuse to obey
a clearly "illegal" order, e.g., an order from his superior officer to shoot an innocent civilian, even if the refusal places the subordinate's own
life, e.g., from actions of the superior officer, in jeopardy. (1), (2),
Necessity (aka" choice of evils," justification) as a defense
The necessity defense exists in American c/l, the MPC Section 3.02, and the TPC Section 9.22. [Note: The English common law is more
problematical - with statements like "Historically the courts of England have refused to accept that there could be a distictive defense of
necessity at common law" contrasted with "But other cases say that there is a common law principle of necessity which may justify action
which would otherwise be unlawful." UCL, Section 22.02, says simply, "Necessity may not have been a common law defense in England."
We'll leave it there.] With necessity, one must balance the harm the defendant (D) causes with the harm his conduct avoids. If the harm D
causes is less than would have been inflicted had D not acted, we may choose to look at the scenario as a net gain to society, and thus view
the action as justifiable rather than simply excusable. Notice, for example, that Texas places the statutory necessity defense in Chapter 9 of
the TPC, a chapter reserved for justifiable use of force and one in which, under Section 9.02 TPC, all justifications are treated as defenses (D
has the the burden of production, but, once he meets that burden, the prosecution must assume the burden of persuasion and disprove the
defense, e.g., necessity, beyond any and all reasonable doubts.
Accident as a separate defense
Look. Don't worry. It's not loaded.
The concept of accident as a defense is utilized in some jurisdictions to indicate that the prosecution has not proven a crime. In Texas, the
term "accident" is not found as a defense to criminal conduct. Instead, when the defense tries to show that the accused did not have the
culpable mental state mens rea) that must accompany the conduct or did not engage in a voluntary act, the trial court instructs the jury to
acquit if it has a reasonable doubt as to whether the required culpable mental state existed or as to whether the defendant acted
Selective or vindictive prosecution
When a decision to prosecute is made selectively (1) based on arbitrary standards such as race, sex, religion, or other arbitrary
classification, or when the prosecutor is vindictive, the prosecution may violate the Due Process and/or Equal protection Clauses.
The general rule under common law is that "ignorance of the law or a mistake of law is no defense to criminal prosecution.
Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation,
rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.
Retribution - Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or
inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance
the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights
granted to them by the law. Thus, one who murders may be murdered himself. A related theory includes the idea of "righting the balance."
Deterrence - Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the
offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other
individuals are discouraged from committing those offenses.
Incapacitation - Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often
achieved through prison sentences today. The death penalty or banishment have served the same purpose.
Rehabilitation - Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by
convincing the offender that their conduct was wrong.
Restitution - This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any hurt inflicted on the victim
by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly
combined with other ma
in goals of criminal justice and is closely related to concepts in the civil law.