Codifying the General Defences
| Date | 01 August 1986 |
| DOI | 10.1177/002201838605000307 |
| Published date | 01 August 1986 |
| Subject Matter | Article |
CODIFYING
THE
GENERAL
DEFENCES
Peter Alldridge*
General Themes
The
area
of general defences' is
one
which is not always seen as an
appropriate
part
of the general exercise of codification.2Nor is it an
area
in which" there is much statutory basis upon which to build.
The
Working Party decided that where, in relation to a general
defence, "
...
the law appears to have attained such a degree of
maturity and completeness that adefinitive statement of it is
possible
...
",
then
that statement should form the basis of the
codified defence. This approach is consistent with the general
attitude of the Working Party
that
it was not" purporting to produce
a
"Model
Penal
Code"
in the Wechsler mould. In addition to
analysis of
the
existing cases, and, where relevant, statutes, the
Working Party were able to make use of official reports.P None of
the
three
main sources of proposals was treated by the Working
Party so deferentially that it would mandate the Working Party to
take aparticular line.
There
are,
of course, a
number
of important themes which run
through the whole of the Report.
It
is therefore appropriate, before
embarking upon consideration of the treatment of particular
defences, to draw attention to two such matters. First, the Working
•
Department
of Law, University College Cardiff
J
Chapter
13of the Report
of
the Working Party on Codification
of
Criminal Law
Law Com. No. 143 (herinafter "Report") deals with general defences. It does not
include, and this comment will not include, consideration of questions of
intoxication, mistake, insanity and automatism.
2Stephen was prepared only to engage in "partial codification" in respect of
defences for the same reasons the Working Party gives for the adoption of clause 49.
See Report para. 5.
1Unlike Criminal Damage, which is used in the Report and its draft Criminal
Code
Bill to illustrate the application of general principles to specific crimes.
•Report para. 1.10.
; In the areas with which chapter 13 deals the most important arc Law Com. No.
83. Criminal Law: Defences
of
General Application (1977) and
C.L.R.C.
14th
Report Offences Against the Person. Cmnd. 7844. (1980).
274
To continue reading
Request your trial