REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02633.x |
| Published date | 01 November 1989 |
| Date | 01 November 1989 |
REVIEWS
JUSTIFICATION
AND
EXCUSE
IN
THE
CRIMINAL
LAW.
By
J.
c.
SMITH.
[The
Hamlyn
Lectures, Fortieth Series.
London:
Stevens
and
Sons
Limited,
1989.
133
pp.
(including index)
f
17.50
hb.
f8.95
IN
these Hamlyn lectures Professor Smith tackles not only the potentially dif-
ficult question whether the justification/excuse dichotomy has any utility in
relation to English criminal law and procedure, but also wider issues concern-
ing the structure of defences, the conditions which surround them, their
coherence if any, and the manner in which some at least might be reformed.
Professor Smith’s theme for these lectures
is
that
a
person should not be
guilty of an offence if he has behaved as any reasonable person in his situ-
ation might be expected
to
behave and that, accordingly, the morally inno-
cent person ought
to
be protected by an evolving structure of defences and
not by mere administrative discretion.
The modern debate concerning justification and excuse has, for the most
part, exercised American scholars who have been much influenced by
German thinking. The debate
is
conducted on two levels.
It
is said, on the
theoretical plane, that debate concerning the justification/excuse dichotomy
represents an argument over flat as against structu:ed thinking.’ Professor
Smith, whose forte is not grand theory in the German mode, does not join
issue with this aspect of the argument. Considerable practical implications
are also claimed for recognition of justification and excuse. Here, the argu-
ment
is
fairly joined.
I
am not the person to quarrel with Professor Smith’s
scepticism. There are those who would not be convinced by his assertion that
the function of
a
criminal Court
is
simply to decide what
is
forbidden by the
criminal law and what
is
not, and that it is no part
of
its duty to approve or
disapprove of what
is
being done. But even were one to take a different view,
it
is
not easy to see how
a
Court could disseminate the message that certain
killings under duress, for example, are excusable, albeit not justified, thereby
affirming the value
of
life, given the opacity
of
the verdict. That is not to say,
of
course, that recognition of the value
of
life requires a categorical rule that
neither necessity nor duress should apply to
a
person implicated in killing
and, indeed, Professor Smith’s own view is that these should
so
apply. One
need not, in any event, accept the assertion sometimes made that duress
is
always excusable and necessity always justifiable.
A
defence of necessity
could be either, though doubtless not on the same facts in the same case. For,
after all, mistake taken with necessity might produce
a
situation in which the
accused
is
excused but in which he certainly could not be considered to have
acted justifiably. The cases, in particular
Perka:
are a trifle incoherent. This
reflects the unwillingness
of
Courts to state the root principles in such
a
way
as to encourage claims of justified civil disobedience. It may also reflect the
fact that certain cases where the accused
is
said
to
have a defence based on
justification are cases in which his conduct might better be analysed as per-
formed pursuant
to
an executive power. While agreeing with Professor Smith
’
See
G. P.
Fletcher, “The Right And
The
Reasonable”
(1985) 98
Harv.L.Rev.
949;
T.
Morawetz, “Reconstructing The Criminal Defences: The Significance
of
Justifica-
tion”
(1986)
77
J.Cr.L.
277.
Pb.1
(1984) 13
D.L.R.
(4th)
1.
868
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