Justifications and Excuses PDF

CHAPTER VIII JUSTIFICATIONS AND EXCUSES Jeroen Blomsma and David Roef 1. INTRODUCTION Even if it is clear that a person’s conduct fits the legal definition of an offence, the question may come up as to whether he is liable to be convicted for that offence. C...

CHAPTER VIII JUSTIFICATIONS AND EXCUSES Jeroen Blomsma and David Roef 1. INTRODUCTION Even if it is clear that a person’s conduct fits the legal definition of an offence, the question may come up as to whether he is liable to be convicted for that offence. Criminal law provides certain circumstances (defences) that take away the criminal liability of the perpetrator. In general we distinguish between justifications and excuses. Since the 20th century this categorisation of defences has been very common in Western criminal law. It is widely accepted in all civil law systems, and even if not generally accepted in England, it is at least well known. Whereas two decades ago, English law still appeared to lack interest in the distinction for want of practical relevance, it has received more attention since then. The dichotomy plays an important conceptual and normative role in theory and practice. It makes a fundamental distinction between wrongfulness and blameworthiness, between act and actor, between an objective evaluation of all things considered and subjective reasons for acting. The dichotomy therefore coincides with the second and third tier on the ladder of criminal liability.1 This explains a large part of why the distinction is of lesser influence in the bipartite system of English law, where fault elements and blameworthiness are often not clearly separated. In addition, English courts are less concerned with dogmatic reasoning than they are with finding an acceptable outcome. Criminal law recognises a wide range of justifications and excuses that can be put forward by the defendant. This chapter is limited to a discussion of the justifications of self-defence and necessity, the corresponding excuses of self- defence-excess and duress, and the excuse of insanity. We will also give some attention to the possible effect of intoxication on criminal liability. But before we explore these different defences in a comparative way, the rationale of the dichotomy as such must be discussed in more detail. 1 See: Chapter IV. Intersentia 207  Jeroen Blomsma and David Roef 2. R ATIONALE OF THE DICHOTOMY 2.1. COMMUNICATIVE DIFFER ENCE The most fundamental rationale of the distinction is that a justification negates the wrongfulness of the act, while an excuse negates the blameworthiness of the actor.2 This brings about a communicative difference. A conviction communicates the reproach towards the perpetrator, makes clear that he should be condemned for doing what he did. Preventive purposes are served by making clear that this conduct is criminal, signalling that it will be punished. Arguably a distinction can be made between acquitting a defendant who did not commit the crime at all, and acquitting a defendant who committed the crime but was justified in doing so, for example in self- defence. The dichotomy of justification and excuse enables an even more nuanced communication. There is a moral difference between having acted, all things considered, in accordance with the legal order and merely being excused because you cannot be blamed for having infringed the norms of the legal order. 3 In legal terms, wrongfulness constitutes the law’s socio-ethical condemnation of the act, whereas blameworthiness constitutes a social-ethical reprimand against the actor.4 The acceptance of an excuse makes clear to the defendant and the public that what he did was wrong, whereas the acceptance of a justification denies that what the defendant did was wrongful in the eyes of the legal order. Already in 1797, we see how the German philosopher Kant used the example of two shipwrecked persons fighting for a plank that is only large enough to support one of them to illustrate the difference between justifications and excuses. He argued that the necessity of the situation does not make what is unjust lawful. However, no law can demand a person to sacrifice himself. The certain threat of death will always weigh heavier than the possible death penalty for homicide. Thus, the act of violent self-preservation is not justified – ‘unsträflich’ – but 2 V. Krey, ‘German Criminal Law – General Part – Volume II – Legal Elements of the Intentional Offence Committed by Action’ (Verlag W. Kohlhammer 2003), pp. 12–13; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 578; A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 673; D.H. de Jong and G. Knigge, ‘Het materiële strafrecht’ (Gouda Quint 2003), p. 55. 3 A. Eser, ‘Justification and Excuse: A Key Issue in the Concept of Crime’ in A. Eser and G.P. Fletcher (eds.), Rechtfertigung und Entschuldigung – Rechtsvergleichende Perspektiven (Eigenverlag Max-Planck-Institut 1987), pp. 26–27; V. Tadross, ‘The Nature of “Partial Defences” and the Coherence of (Second Degree) Murder’ Criminal Law Review (2005), pp. 120 and 266. 4 V. Krey, ‘German Criminal Law – General Part – Volume II – Legal Elements of the Intentional Offence Committed by Action’ (Verlag W. Kohlhammer 2003), pp. 12–13. 208 Intersentia  Chapter VIII. Justifications and Excuses merely excused – ‘unstrafbar’.5 As we will see later, this form of necessity is generally called duress, to emphasise the excusatory nature of the defence. The communicative advantage of the dichotomy becomes more clear when we reintroduce R v Dudley and Stephens (already discussed in Chapter IV), the case of the crew of the Mignonette, who ate the cabin boy when they were cast away. The excuse of duress was rejected because the court feared the public would misunderstand their acquittal as a justification of their actions. Thus we see how the lack of a clear conceptual distinction between justificatory and excusatory circumstances may lead to an unwillingness to excuse the defendant, fearing that this message will be misinterpreted. By contrast, in systems that acknowledge the difference between wrongfulness and blameworthiness, such cases can be dealt with more appropriately due to the justification/excuse dichotomy. While killing another (innocent) human being for the sake of one’s own survival certainly fulfils the offence definition of murder and is considered wrongful, no one can be blamed on a personal level for giving in to one of the strongest human instincts, i.e. self-preservation. 2.2. PERSONAL AND UNIVERSAL APPLICATION Perhaps the most important practical implication of the dichotomy is that justifications are believed to have a universal character, whereas excuses operate only personally. This means that if someone is justified, a third party may assist that person, whereas if that someone is merely excused, a third party may not intervene. For example, if the defendant helped someone who was using force in self-defence, he will not be liable for aiding. In contrast, if that someone was coerced to injure another, the defendant will be liable for helping that excused actor. Arguably, the aider was not personally coerced to injure the victim.6 The universal application of justifications is often based on the perspective that justified conduct is said to produce a net social benefit and therefore constitutes no wrong. It should therefore be supported by the legal order, by making clear that others are allowed to help the justified actor. This is reflected in the national doctrines on participation. Participation is only possible in a wrongful act, so a justification applies to all participants. 5 J. Hruschka, ‘On the History of Justification and Excuse in Cases of Necessity’, in B.S. Byrd and J. Hruschka (eds.), Kant and Law (Ashgate 2007), pp. 323–335. 6 D. Ormerod, ‘Smith & Hogan: Criminal Law’ (Oxford University Press 2005), p. 268; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechens- lehre’ (C.H. Beck Verlag 2006), p. 964. Intersentia 209  Jeroen Blomsma and David Roef 3. SELF-DEFENCE Self-defence is arguably the most popular and self-evident defence of all.7 Before we explore the conditions of self-defence in an integrated manner, while highlighting some national differences, it is good to mention some rationales that may ground self-defence. 3.1. R ATIONALES First and foremost, defending oneself can be seen as a natural right. This rationale was dominant until the 19th century, after which the rationale of the legal order grew in importance.8 Historically, it is grounded in the right of self- preservation of man.9 It is argued that before the formation of societies, personal survival was essential. A natural right existed to defend oneself against attacks from others. In the narrative of the social contract between the individual and the state, the individual transferred some of his freedom to the state, in return for protection.10 Nonetheless, it has also always been clear that the state cannot always intervene in time. A legal system cannot uphold the right to life, protected under Article 2 ECHR, without a right to self-defence. The contract between state and citizens therefore does not exclude their natural right of self- preservation. In Anglo-American law a classic and very common rationale concentrates on the culpability of the aggressor. This rationale focuses on the aggressor’s rights in two possible ways, the first of which is the approach of forfeiture. The aggressor, by his conduct, loses his right to life or at least the right to claim this right. This approach has been criticised and a more appropriate variation – that of reduction – has been put forward. In this approach, the aggressor does not lose his rights, but because the aggressor is responsible for the danger, the value of his rights is reduced when balancing the competing interests at stake.11 The rationale thus explains why in the situation where the life of the aggressor is juxtaposed with the life of the attacked person, the latter is objectively justified in favouring his own. 7 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 137–138. 8 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 133–134. 9 See: W. Blackstone, ‘Commentaries on the Laws of England – A Facsimile of the First Edition of 1765–1796 – Volume IV of Public Wrongs (1769)’ (University of Chicago Press 1979), p. 186. 10 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 30–31. 11 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 858; B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 44–45. 210 Intersentia  Chapter VIII. Justifications and Excuses As will be explained, self-defence is only allowed when necessary and proportional. These conditions are strongly related to the rationale of protection of the legal order which arguably includes also the life of the aggressor. Although the right to life is not absolute, it does greatly restrict the use of deadly force by requiring a high threshold of necessity and proportionality.12 A single focus on the interests of the attacked person would not require proportionality. It would suffice that the defensive force, of whatever degree and for whatever danger, is necessary for the protection of the autonomy of the attacked person.13 In other words, this limitation to the right of self-defence can only be based on a rationale that concentrates on other interests as well, such as those of the legal order as a whole.14 Excessive injury to the aggressor may harm the legal order. Only this perspective can explain the upper limit of proportionality in both self-defence and self-defence-excess. 3.2. CR ITER IA The criteria for self-defence can already for a large part be deduced from some legal definitions. §32 GCC defines self-defence as follows: ‘(1) A person who commits an act in self-defence does not act unlawfully. (2) Self-defence means any defensive action that is necessary to avert an imminent unlawful attack on oneself or another.’ And Article 41(1) DCC: ‘He who commits an act where this is necessary in the defence of his person or the person of another, his or another’s person’s integrity or property, against an imminent unlawful attack, is not criminally liable.’ In order for self-defence to justify a criminal offence, the attack must be wrongful, imminent, and infringe an individual interest. Next, self-defence must be necessary, i.e. the defendant is only allowed to use the least intrusive means of defence. This is also called the subsidiarity requirement. Moreover, the defendant must act in line with the requirements of proportionality. While necessity speaks to the question of whether some less costly means of defence, such as merely firing a warning shot, might be sufficient, the requirement of 12 A. Ashworth, ‘Self-defence and the right to life’ The Cambridge Law Journal (1975), p. 283; B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 42–43. 13 G.P. Fletcher, ‘Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory’ Israel Law Review (1973), p. 381. 14 C. Roxin, ‘Die “socialethishen Einschränkungen” des Notwehrrechts – Versuch einer Bilanz’ Zeitschrift für die gesamte Strafrechtswissenschaft (1981), pp. 74–77; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 675–676. Intersentia 211  Jeroen Blomsma and David Roef proportionality is more focused on the gravity of the attack, addressing the ratio of interest threatened on the side both of the aggressor and of the defender.15 3.2.1. Interrelationship of the criteria It should be noted that the above categorisation of criteria is by no means self- evident. Amongst other things, the choice of defensive means is often closely connected with the subsequent question of proportionality of how one should use these least intrusive means. For example, if a firearm may be chosen, the defendant can subsequently choose to fire a bullet at the leg or torso of the aggressor. As a result of this close connection, proportionality is often understood to encompass not only the intensity of the defence but also the choice of defensive means (subsidiarity). In Germany, for example, the least intrusive means is sometimes discussed in close relation with the intensity of the defence, the latter therefore dubbed proportionality stricto sensu.16 As to English law, distinguishing the criteria for self-defence seems even more complicated. English case law on self-defence has now been codified in section 76 of the Criminal Justice and Immigration Act 2008. This codification includes (i) the common law private self-defence and (ii) the public defence of section 3 of the Criminal Law Act 1967, which provides that a person may use force in the prevention of crime or in arresting offenders or suspects. Both defences require that the force applied should be reasonable, and the force is reasonable if it is necessary and proportional. Thus the English law sweeps within one inquiry what should preferably be distinguished.17 Notwithstanding these differences, in this chapter we will distinguish, mainly for reasons of didactic clarity, the requirement of necessity from that of proportionality by limiting the former to the use of least intrusive means and the latter to the intensity of the defence. Of course, this does not deny the fact that necessity and proportionality mutually influence each other. 3.2.2. Wrongful and imminent attack Only a wrongful attack can give rise to self-defence. An attack can be defined as an immediate threat to legally protected interests through human behaviour.18 15 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), p. 135. 16 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 674–683. 17 G.P. Fletcher, ‘The Right and the Reasonable’ in A. Eser and G.P. Fletcher (eds.), Rechtfertigung und Entschuldigung – Rechtsvergleichende Perspektiven (Eigenverlag Max- Planck-Institut 1987), p. 89. We will therefore discuss this English reasonableness standard in a separate section (3.2.6). 18 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag (2006), p. 657; M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 100. 212 Intersentia  Chapter VIII. Justifications and Excuses Thus, attacks of an animal only qualify under self-defence if a human has incited it. In that case, the animal can be equated with any other tool the aggressor could have used to attack. In other cases, defensive force against animals can only be justified under necessity.19 The requirement that the attack must be wrongful or unlawful shows that self-defence is a fight of right against wrong. It therefore also serves to exclude from the defence situations wherein public officials carry out their official tasks of, for example, arrest.20 Self-defence only applies against attacks that are imminent, have begun or are ongoing.21 In those cases, the attacked person cannot wait for the official authorities to protect his interest. In order to avert the attack, to minimise the harm, he must act himself (leaving aside for now other alternatives such as retreating).22 The difficulty lies in determining the limits of this temporal requirement: when does the attack start and when does it end? It is located in between two facets. On the one hand, self-defence may be performed at its earliest when danger is already close. It may be performed on the other hand only as long as the attack continues, otherwise it would be retaliation. To start with the latter facet, the right to self-defence ends with the end of the attack. The attack is ongoing until the aggression has been factually completed either by abandoning the attempt, by its failure or by causing the definite violation of the protected interest, so there is no further harm to be avoided. However, the completion of the legal elements of an offence is not constitutive, as the person whose bag is stolen may pursue the thief and use force to regain possession in self-defence. The attack will be ongoing until the thief has secured full and safe possession of the bag.23 Regarding the starting point, defensive force would become useless if the criteria to determine the beginning of the attack were too strict.24 When the attack has already started, some harm may have already been inflicted and the defendant may no longer be able to stop the attack. In the absence of other options, the defendant must have the opportunity to avert any harm to 19 26 February 1960 BGHSt 14, 152; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 657–658. 20 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 613–614. 21 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 644; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 321–322. 22 R.P. Kaufmann, ‘Self-Defense, Imminence, and the Battered Woman’ New Criminal Law Review (2007), pp. 354–359. 23 12 February 2003 BGHSt 48, 207; M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 101; B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 257–260. 24 7 November 1972 BHGS NJW 1973, 255; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 321–322. Intersentia 213  Jeroen Blomsma and David Roef a protected legal interest. The criterion is therefore that the attack or danger thereof should be imminent, not that the interest is actually infringed.25 In contrast, the mere fear of an attack cannot warrant self-defence.26 3.2.3. Legitimate interests The interests that may be defended in self-defence are limited. Due to this limitation, self-defence is demarcated from a general right to fight wrong.27 The wrongful attack needs to be aimed at a legitimate interest of the attacked person. It is undisputed that interests like a person’s life, liberty, body and property qualify as legitimate interests.28 A quick look at §32 GCC makes clear that the scope of legitimate interests is the widest in Germany, where the starting point is that any individual legal interest can be defended.29 In contrast, Dutch law exclusively lists the interests that can be defended. In practice this does not necessarily lead to different outcomes. For example, in contrast to Germany,30 trespass cannot give rise to self-defence in the Netherlands.31 However, it is assumed that this will usually bring about an immediate danger to life, body and/or property and thus qualify for self-defence.32 When the attacked person is inside his own house, he can in principle not be required to retreat. Finally, it should be noted that the above-mentioned legal interests of a third party may also be defended. Hence, the German term ‘Notwehr’, or the Dutch equivalent ‘noodweer’, is perhaps a more suitable label for this justification than self-defence.33 The case for defence of another is justified by the rationale of the protection of the legal order. 25 HR 2 February 1965, NJ 1965, 262 and HR 30 March 1976, NJ 1976, 322; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 321. 26 HR 8 February 1932, NJ 1932, p. 617; HR 18 September 1989, NJ 1990, 291; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 321. 27 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 640. 28 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 669–670; B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), p. 123. 29 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 136. 30 15 May 1979 BHGSt 3, 217; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 669. 31 HR 14 April 1998, NJ 1998, 662. 32 HR 27 May 2008, NJ 2008, 510; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 319. 33 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 1–2. 214 Intersentia  Chapter VIII. Justifications and Excuses 3.2.4. Necessity The necessity or subsidiarity requirement deals primarily with the question of whether the defendant has used the least intrusive means of defence to ward off the attack. For example, the defendant should use his fists rather than a weapon if that will suffice to repel the attack.34 However, in German law, it is required first and foremost that the means must be capable of either ending or at least hindering the attack. This element of adequacy is easily met. Only what is clearly not adequate to end the danger is excluded from self-defence, like the destruction of goods that have no relation to the attack. The defendant does not have to be certain that his actions will in fact be able to avert the attack. What suffices is the possibility that by this action the attack is diminished in intensity or postponed. Thus, the defendant is allowed to defend himself with force against a superior opponent or great number of opponents, even if he accepts the possibility he might get the worst of it.35 As the use of force in self-defence seems to only be necessary when there are no alternatives, an important question is whether one is to avoid or end the confrontation by retreating. The focus on state monopoly of violence seems to imply that one has a strict duty to retreat or avoid conflict. As a result, the Dutch Supreme Court for a long time applied the rule that self-defence is not necessary when there is a possibility to retreat.36 In contrast, a strict duty to retreat has never been part of the German law on self-defence, since right should never give way to wrong. German courts have even legitimised a lenient approach by arguing that the law does not require a ‘humiliating retreat’.37 The German Supreme Court even held in the case where a schoolboy, who had been bullied numerous times before, brought a knife to school and stabbed his bullies, that this defendant was not required to get the help of teachers since this would be a shameful retreat.38 Arguably such a wide scope of self-defence fails to respect the interests of the aggressor and, in combination with a pre-emptive strike, runs the risk of over-stimulating self-assertion.39 Currently, an absolute duty to retreat no longer exists in any of the legal systems. It is therefore more appropriate to talk about a possibility to retreat. English and Dutch law have definitely moved towards German law, 34 11 September 1995 BGH NStZ 1996, 29. 35 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 651–652; M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 10. 36 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 324. 37 26 May 1964 BGH GA 1965, 147. See also: T. Fisher (ed.), ‘Strafgesetzbuch und Nebengesetze’ (C.H. Beck 2009), p. 295. 38 24 July 1979 BHG NJW 1980, 2263. In contrast see the Dutch case in Hof Amsterdam 22 July 2008, ECLI:NL:GHAMS:2008:BD8276, where even self-defence-excess was rejected. 39 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 125; F. Leverick, ‘Killing in Self-Defence’ (Oxford University Press 2006), p. 82. Intersentia 215  Jeroen Blomsma and David Roef by considering the possibility to retreat as only one of the factors that may determine the justification, such as the blameworthiness of the aggressor or the defendant himself (prior fault). For example, a real duty to retreat may still exist when the aggressor is an infant or the defendant provoked the aggressor.40 In principle, the mere possibility of retreat does not necessarily preclude the justification. As a consequence, the scope of self-defence has become broader than it originally was. For example, getting (official) help is only required when this help is immediately available without extraordinary efforts.41 In addition, the attacked person cannot be required to retreat when the path of retreat endangers the attacked person, when retreat would merely gain time or when it is hardly possible.42 A person attacked at home also has no duty to withdraw.43 The modern rationale for this rule is that retreat harms the legal order as it ‘constitutes a retreat of law and order before the aggressor who violates the law.’44 A strict duty to retreat would mean that right gives way to wrong. If it were different, this would encourage aggressive and threatening behaviour. An example of this is a case where the defendant could not use his right of way because a trailer blocked the driveway. He would have moved it himself, had he not been in an argument with its owner for some time. Knowing there was a risk the owner would react violently, he went into the owner’s greenhouse to ask him to move his trailer, only to be told to get out of there. The defendant however stayed where he was and was attacked, whereupon he defended himself by stabbing the victim with a pair of scissors.45 3.2.5. Proportionality The proportionality standard assesses the relationship between the offence committed and the amount of harm likely to be suffered by the defendant.46 Simply put, it is about weighing the interests of the aggressor against those of the defendant. It should be stressed that it is not required that force must be exactly in proportion with the attack. As long as the defensive force was not a 40 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 104. 41 5 October 1965 BGH VRS 30, 281; 11 January 1984 BGH NJW 1984, 986; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 680. 42 HR 15 January 2008, RvdW 2008, 120; B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 197 and 202–203. 43 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 124; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 324. 44 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), p. 194. 45 HR 29 April 1997, NJ 1997, 627. See also: HR 28 March 2006, NJ 2006, 509. 46 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 120. 216 Intersentia  Chapter VIII. Justifications and Excuses disproportionate response to the attack, the defendant will be justified. It is also not required that the anticipated evil should have been greater than the force used to avert this. For instance, lethal force can be justified even when the danger to the attacked person was of severe bodily harm or less, as in rape.47 This can be grounded in the reproach that can be made against the aggressor and because the defendant cannot be required to make a perfect weighing of interests in an urgent situation. Similar considerations apply regarding the possibility to first threaten with a weapon before actually using it. Threatening is only required if the circumstances allow for it.48 For example, the defendant does not have to threaten first if he runs the risk of thus being injured.49 What is considered disproportionate is assessed by reference to the strength of the attack, the dangerousness of the aggressor and the available means, taking into account all the circumstances of the situation.50 Because of the enormous weight of the circumstances of the case, the approach to proportionality, like that of necessity, is very factual and casuistic. Both aspects are established ex ante objectively by reference to a reasonable man standard at the time of the attack, being aware of all objectively knowable circumstances as they were at the time, rather than as they turned out to be ex post.51 However, despite the objective standard, individual characteristics can lower and raise the proportionality requirement. For example, disparity of strength, size and relationship between defender and aggressor can explain why the use of weapons against an unarmed aggressor can sometimes be proportionate. On the contrary, a trained boxer can be expected to use his fists.52 ‘Garantenstellung’ also indicates that a defendant has a certain function to which norms apply, and therefore more can be expected from him. A police officer is, for example, deemed to be better at assessing situations and responding appropriately.53 It is interesting to note that in recent years, the Dutch Supreme Court has extended the scope of proportionality. Because of this and changing perceptions, Dutch courts have become more lenient in allowing self-defence. For example, a jeweller who saw he was being robbed, took a gun, descended the stairs and started shooting, could rely on the defence.54 So could the defendant who 47 11 September 1995 BGH NStZ 1996, 29; B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 168, 183 and 196–197. 48 9 August 2005 BGH NStZ 2006, 152; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 676. 49 25 November 1980 BGH NStZ 1981, 138. 50 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 651– 652. 51 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag (2006), p. 678. 52 25 November 1980 BGH NStZ 1981, 138; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 659, 676 and 678. 53 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 128. 54 Rb. Breda 8 May 2003, ECLI:NL:RBBRE:2003:AF8365. Intersentia 217  Jeroen Blomsma and David Roef pursued a burglar with a baseball bat, caught up with him and, in overpowering him, inflicted serious injuries on him.55 The opposite trend exists in Germany, as a result of which the national concepts of self-defence have moved towards each other. Here it is important to note that for a long time even proportionality was foreign to the German concept of self-defence. However, it can now be concluded that this is currently also an important limitation to self-defence.56 A classic example that is most often used to illustrate the traditional lack of a proportionality requirement is that of the farmer who caught schoolboys stealing his apples. He would be acquitted based on self-defence for shooting at them, because this was the only way of stopping them. Clearly, this gave rise to quite some controversy, as the property rights to apples seem to be favoured over the lives of the young boys.57 Such an outcome would be unacceptable under Dutch law as the legislator explicitly included a proportionality requirement.58 By contrast, German law traditionally puts great weight on the dogma that right should never yield to wrong, focusing on necessity. Theft constitutes an ongoing attack, and if there were no other means of ending the attack, even lethal force was allowed to secure property.59 Any other solution would imply that the farmer has to accept the loss, and thus yield to wrong. Nonetheless, over the years it was increasingly recognised that the lack of a proportionality standard could lead to absurd outcomes that could hardly be said to serve the legal order.60 The legal order is after all concerned with the interests of the aggressor too. Thus in current German law, consequences that are blatantly disproportional to the threatened harm can be disallowed as disproportionate under the doctrine of abuse of rights, even when it is the only option available.61 3.2.6. The ‘reasonableness’ requirement in England As already mentioned, in English law self-defence can only succeed if the defendant used ‘reasonable force’ against the attack. This rather broad criterion 55 Rb. Almelo 19 October 2007,ECLI:NL:RBALM:2007:BB6018. 56 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 74, 127 and 170. 57 In 20 September 1920 RGSt 55, 82, a farmer had shot at thieves who were fleeing with his fruit. He was justified because they did not respond to his warnings. The German Supreme Court saw no problem of proportionality. 58 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 308. 59 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 639 and 651. 60 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 684. 61 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 65 and 170–172. To be precise, these ‘socio-ethical limitations’ of the use of self-defence are therefore theoretically not so much grounded in the test of proportionality stricto sensu (‘Verhaltnismäβigkeit’) but in the concept of ‘Gebotenheit’, which also translates as proportionality. 218 Intersentia  Chapter VIII. Justifications and Excuses covers aspects of necessity and proportionality. First, section 76(3) of the Criminal Justice and Immigration Act 2008 provides a purely subjective approach in determining whether an act of self-defence is necessary: ‘The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be’. The necessity of applying defensive force should thus be assessed on the basis of the danger the defendant took to be present. This means that any genuine mistake on the facts giving rise to self-defence will therefore acquit. The established common law position regarding this so-called imaginary or putative self-defence62 is explicitly laid down in section 76(4): ‘If D claims to have held a particular belief as regards the existence of any circumstances – (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not – (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made.’ In short, if a defendant makes an honest mistake which leads him to believe there are circumstances making self-defence necessary, the courts will assess the necessity of the defendant’s conduct on the basis of the facts as the defendant believed them to be, even if the mistake was not a reasonable one to make.63 The main rationale for not requiring a reasonable mistake is that since the mistake would have justified his conduct, if it were correct, the defendant aimed to act in conformity with the legal order. A requirement of reasonableness would also deter people from helping others.64 One may ask whether this reasoning is logically and morally sound. One could also argue that the commission of a prima facie wrong, i.e. the use of deadly force, means that the defendant should 62 Although putative self-defence is rather an excuse than a justification, because the circumstances for justification were absent and the defendant merely believed they were present, it should be noted that in English law it is still considered to be a justified self- defence. See for criticism on this position: A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), pp. 215–218. By contrast, in the Netherlands a putative self-defence is more viewed as an excuse, while in German law it is considered to deny the intent of the defendant. See: J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 332–333. 63 The origin of this position was R v Williams (Gladstone) 3 All ER 411, where the Court of Appeal concluded that a defendant charged with assault could successfully plead self- defence on the basis of an honest but unreasonable belief that the victim was being attacked. 64 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), pp. 288–289. Intersentia 219  Jeroen Blomsma and David Roef be especially diligent in assessing whether the circumstances giving rise to a defence are actually present. In other words, if any mistake allows for the use of force, are then the rights of an innocent person, who is unreasonably mistaken for an aggressor, still respected?65 Requiring a reasonable mistake seems necessary in order to strike a fair balance between the interests of offender and defender. This subjective approach means, for example, that the police can avoid criminal liability where they have shot members of the public mistakenly, even when they unreasonably believed that they were armed and dangerous. We may refer here, for example, to the case of Jean Charles de Menezes who was fatally shot in the London Underground in 2005 when the police mistook him for a suicide bomber.66 The Crown Prosecution Service decided not to prosecute any of the police officers. Although they were mistaken as to the facts, the court would not convict them as it would take into account the facts as the police believed them to be. This raises the question whether English law is still compatible with Article 2 ECHR, the right to life. According to the ECtHR any use of deadly force must be both ‘absolutely necessary’ and ‘strictly proportionate’, and if based on a mistaken belief, it must be held for good reasons.67 The UK has been brought before the ECtHR by relatives of persons shot in putative self-defence numerous times. Nonetheless, the UK has not often been held to have violated Article 2 ECHR.68 Secondly, as well as a subjective necessity requirement, the English reasonableness standard also requires that the force used is proportionate to the value being upheld. Section 76(6) of the Criminal Justice and Immigration Act 2008 provides: ‘The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.’ What constitutes reasonable force is for the jury to decide, weighing the amount of force used against the harm the defendant sought to prevent. What is important, however, is that a mistake about the intensity or scope of the self-defence must be reasonable to acquit.69 The belief principle does not apply here. Normative standards such as proportionality should not be the object of 65 F. Leverick, ‘Is English self-defence law incompatible with Article 2 of the ECHR?’ Criminal Law Review (2002), p. 349. 66 C. Eliot and F. Quinn, ‘Criminal Law’ (Pearson Education Limited 2010), p. 351. 67 McCann and others v the United Kingdom, Appl. No. 18984/91, 27 September 1995. See: F. Leverick, ‘Killing in Self-Defence’ (Oxford University Press 2006), pp. 185–187. 68 F. Leverick, ‘Is English self-defence law incompatible with Article 2 of the ECHR?’ Criminal Law Review (2002), pp. 351–357. 69 R v Owino 2 Cr App R 128; DPP v Armstrong-Braun 163 JP 271; D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 431–432. 220 Intersentia  Chapter VIII. Justifications and Excuses subjective assessment.70 Thus while an unreasonable mistake in relation to the existence of an attack can lead to an acquittal on the basis of self-defence, this is not possible if the defendant honestly but mistakenly believes that a certain (excessive) degree of force is necessary to repeal that attack.71 To conclude, it should be noted that in England there is a tendency to incorporate more acts of excessive force into the justification of self-defence than in civil law systems. This may for a large part also be explained by the fact that English law does not know the excuse of self-defence excess. In the absence of other legal solutions that allow for an acquittal, courts therefore seem more lenient in applying the test of proportionality.72 Section 76(7) of the Criminal Justice and Immigration Act 2008 enables this by stating: ‘(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.’ After all, the exclusion of the excuse of self-defence-excess can lead to harsh results, especially if we consider that the defendant was attacked and that intentional killing will result in a mandatory ‘life sentence’ for murder, which always brings a minimum of 15 years of imprisonment.73 This harshness is also mitigated by not prosecuting in those cases where the degree of force was not very far beyond the threshold of what is reasonable.74 4. SELF-DEFENCE-EXCESS Self-defence is only justified if the necessary force was proportionate to the interest being upheld. However, if the defendant, overpowered by emotions like fear or rage, exceeds the limits of proportionality, civil law systems accept the possibility to invoke the excuse of self-defence-excess. Thus §33 GCC provides: ‘If the perpetrator exceeds the limits of necessary defence due to confusion, fear or fright, then he shall not be punished.’ 70 G.R. Sullivan, ‘Knowledge, Belief and Culpability’, in S. Shute and A.P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part (Oxford University Press 2002), pp. 223–224. 71 F. Leverick, ‘Is English self-defence law incompatible with Article 2 of the ECHR?’ Criminal Law Review (2002), p. 349. 72 J. Horder, ‘Excusing Crime’ (Oxford University Press 2006), pp. 56–57. 73 B. Sangero, ‘Self-defence in Criminal Law’ (Hart Publishing 2006), p. 297. 74 CPS: ‘Self-defence and the prevention of crime’, www.cps.gov.uk/legal/section5/chapter-d. html. Intersentia 221  Jeroen Blomsma and David Roef And Article 41(2) DCC: ‘Exceeding the limits of necessary defence, where such excess has been the direct result of a strong emotion brought about by the attack is not punishable.’ Although the excuse of self-defence-excess is not recognised in English law, there exist some functional equivalents that can reduce a charge of murder to a less serious one of manslaughter. These partial defences have similar rationales as excessive self-defence and will therefore also be briefly discussed. 4.1. INTENSIVE AND EXTENSIVE EXCESS Two forms of the excess can be distinguished. In intensive excess, the degree of necessary force is exceeded. For example, the attacked person shoots the aggressor three times in his torso, when the attack could have also been averted with one shot at his legs.75 The other form really deals not with proportionality as such, but more with the necessity of the defence, which usually ends after the attack. In extensive excess, the defendant either continues after the attack has ended or only reacts after the attack has ceased.76 Consider the defendant who continued or even only started to kick the aggressor when he was no longer a threat, lying injured on the ground. Arguably, extensive excess is problematic in light of the necessity requirement. If the attack has ended, the defence is no longer necessary. This makes it more controversial and therefore explains why it is not even recognised extensive in Germany. However, in Dutch law this problem is overcome by requiring - excess that a situation of self-defence must have existed at one point in time. For extensive excess to apply, there should be or have been a situation of self-defence. Accordingly, the Dutch Supreme Court quashes judgments that imply that there can be no excess simply because the situation of self-defence has already ended.77 In Germany however, the judiciary constantly precludes the excuse in these situations, arguing that only an actual situation of self-defence can be exceeded. For excessive self-defence to apply, the attack must still be wrongful; a situation of necessity must exist.78 However, the recognition of extensive excess in Germany is not that far away, if we consider that courts apply a broad scope 75 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 327. 76 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 327. 77 Like in HR 4 March 2008, NJ 2008, 158. 78 23 January BGH NStZ 2003, 599; 13 November 2008 BGH NStZ-RR 2009; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 998–999. 222 Intersentia  Chapter VIII. Justifications and Excuses of imminence that includes situations of extensive excess as part of intensive excess. They accept that the imminence of an attack continues until its definitive termination. For example, when a repetition of the attack might be feared, the attack is still imminent and the force is judged as intensive excess.79 As mentioned, proportionality determines where self-defence ends and excess begins. If there is a self-defence situation, but the force used is disproportionate the defendant may still be excused. The criterion is, as always, assessed normatively. Depending on the circumstances, the court can therefore also hold that the force was so disproportionate that the defendant cannot even be excused. In other words, proportionality also forms the upper limit of self-defence-excess. For example, in the case where a senior man grabbed the defendant by the testicles, the defendant hit the man on the head with a heavy vase, as a result of which he died. The Dutch Supreme Court in effect held that the attack of the man may have caused the defendant to exceed the limits of what is proportional, but this was so disproportionate that it could not excuse.80 4.2. STATE OF MIND CAUSED BY THE ATTACK The excessive force must have been a consequence of a specific state of mind directly caused by the attack. This requirement of double causation is strictest in the Netherlands, where it has been held that the excess should be the direct consequence of the affect, meaning that it was of overriding importance. If the excessive force, like hitting and kicking an aggressor who is lying on the ground, was not caused by an emotion like fear as a result of the attack, but simply out of feelings of aggression, induced by alcohol, not the attack, the excuse will be rejected.81 In Germany, the attack must not necessarily be the predominant cause of the loss of control as it suffices that it is co-causal for the exceeding.82 The required states of mind can be distinguished into sthenic and asthenic feelings. Asthenic affects are passive feelings like fear, confusion and desperation that paralyse powers and make people weak, whereas sthenic emotions are active like anger, rage and indignation. The defence in the Netherlands covers both categories, whereas German law excludes the latter category.83 The German provision on excess enumerates the asthenic affects that can give rise to the defence, whereas the Dutch provision uses a more generic term to include both types of emotion in all manifestations. German scholars often ground the exclusion of sthenic affects in the belief that it might set free latent feelings 79 24 October 1919 RGSt 54, 56; 24 October 2001 NStZ 2002, 141. 80 HR 8 April 2008, NJ 2008, 312. 81 HR 13 June 2006, NJ 2006, 343; HR 31 March 2009, NJ 2009, 177. 82 21 March 2001 BGH NStZ 2001, 591; M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 122. 83 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 122. Intersentia 223  Jeroen Blomsma and David Roef of aggression. Moreover, aggressive emotions generally are considered more dangerous and should therefore be restricted for the sake of the protection of (the aggressor’s) legal interests.84 Nonetheless, the difference between the Dutch and German defence is seriously mitigated because of the German rule that sthenic affects may also play a role, as long as the asthenic emotion is still also causal for the excessive use of force.85 It should be noted that individual characteristics of the defendant influence the availability of the excuse.86 Arguably we can expect more from some and less from others. The excuse can be rejected because the specific defendant should have restrained himself. For example, a prison guard could not rely on the defence. Considering his profession, he should not have reacted to the blow to his face by punching the victim in the head after he was restrained on the floor.87 4.3. PARTIAL DEFENCES IN ENGLAND Self-defence in an excusatory form is not available in England. In cases where the victim dies as a result of disproportionate defensive force, the unavailability of excess thus brings about a harsh mandatory sentence for the defendant. To avoid this, English law recognises two partial defences that can reduce a charge of murder to the less serious one of (voluntary) manslaughter. 4.3.1. Loss of control The first of these partial defences is called loss of control. With the Coroners and Justice Act 2009, the defence of ‘provocation’ under section 3 of the Homicide Act 1957 was replaced in October 2010 by the very similar defence of loss of control. The defence has been said to consist of two tests. The first, subjective test requires that the killing was the result of loss of self-control, and the loss of self-control was caused by a qualifying trigger like an attack or a provocation. Just as in self-defence-excess, a criterion of double causation applies.88 The new defence no longer uses the word provocation but narrowly lists as a possible ‘qualifying trigger’ thing(s) said or done which constituted circumstances of an extremely grave character, and caused the 84 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 992 and 995. 85 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 995–997. 86 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 332–333. 87 Hof Den Haag 25 February 2009, ECLI:NL:GHSGR:2009:BH4016. 88 R. Holton and S. Shute, ‘Self-Control in the Modern Provocation Defence’ Oxford Journal of Legal Studies (2007), p. 59. 224 Intersentia  Chapter VIII. Justifications and Excuses defendant to have a justifiable sense of being seriously wronged.89 The striking of the term ‘provocation’ already indicates that the defence has shifted away from partially condoning anger. For example, the new defence excludes from it killing after losing one’s temper or outrage due to sexual infidelity. At the same time, it is broadened by including fear of serious violence inflicted by the victim on the defendant or someone else as a qualifying trigger of the loss of self-control.90 Like the emotion in self-defence-excess, the loss of self-control must be very severe. A simple reduction is insufficient. A second, more normative test requires that the loss of self-control was in accordance with the reasonable man standard. The defendant is compared with the person of his sex and age, with a normal degree of tolerance and self-restraint and in the circumstances he was in.91 Persons who lack sufficient self-control – such as a habitually aggressive person – will not be able to avail themselves of the defence.92 4.3.2. Diminished responsibility The defence of diminished responsibility was originally created by section 2 of the Homicide Act 1957 in order to mitigate the very narrow English definition of insanity. The defence has now been modernised to work more closely with the current medical understanding of mental health problems by section 52 of the Coroners and Justice Act 2009. Just like loss of control, the major rationale for diminished responsibility is the mandatory life sentence for murder. It is however far less popular than loss of control, for it stigmatises the defendant as not being sane. The defence is only a concession to abnormal human frailties.93 This partial defence demands that the abilities to understand the nature of one’s conduct, to form a rational judgment and to exercise self-control are substantially impaired.94 The scope of abnormality was and still is wider than that of insanity under English law.95 For example, ‘irresistible impulse’ is also included in the defence.96 Obviously, a test of double causation also applies. The defendant must have killed because his mental faculties were substantially impaired as a result of an abnormality of mental functioning due to a recognised medical condition.97 89 Section 54(1)(b) of the Coroners and Justice Act 2009. 90 Section 55(3), (4) and (5) of the Coroners and Justice Act 2009. 91 Section 54(1)(c) of the Coroners and Justice Act 2009. 92 R. Holton and S. Shute, ‘Self-Control in the Modern Provocation Defence’ Oxford Journal of Legal Studies (2007), pp. 58–60. 93 J. Horder, ‘Provocation and Responsibility’ (Clarendon Press 1992), p. 162. 94 Section 52 of the Coroners and Justice Act. 95 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 612–615. 96 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 607–608. 97 G. Virgo, ‘Diminished Responsibility Expanded’ The Cambridge Law Journal (2003), pp. 541–542. Intersentia 225  Jeroen Blomsma and David Roef Diminished responsibility not only fills the gap left by the exclusion of self-defence-excess. Unlike most civil law systems, English law also does not recognise the defence of partial insanity or diminished capacity. This all-or- nothing approach to insanity makes the defence of diminished responsibility relevant in homicide cases falling short of complete insanity. Diminished responsibility does not require that capacities are totally impaired, merely that they are substantially impaired.98 It can therefore be concluded that if English law were to recognise partial insanity and self-defence-excess, like German and Dutch law, there would hardly be any use any more for diminished responsibility. To many English scholars and practitioners, the better solution would even be to do away with the mandatory sentence for murder altogether. After all, if it were not for the mandatory sentence, both self-defence and the partial defences would not have been stretched to their limits.99 5. NECESSITY Justified necessity applies in a situation of actual danger to legal interests, which danger can only be averted by infringing less valuable interests of third parties. Justified necessity should be distinguished from duress, which in civil law systems is often labelled as excusing or psychological necessity. The choice made in justified necessity is objectively right or at least the lesser of two evils. By contrast, duress is the acknowledgement that the defendant was under such a pressure that he could not reasonably be expected to abide by the law. He is therefore only excused for making the wrong, but understandable, choice.100 Thus the person who is speeding to get his injured mother to the hospital can be juxtaposed with the person who is speeding because a criminal tells him to at gunpoint. The latter is a classic example of duress by threats. Nonetheless, this distinction is not always self-evident, as both defences arguably revolve around a certain infringement of the freedom of choice of the actor. In England in particular, there is disagreement about whether cases should be dealt with under the doctrine of necessity or the similar ‘duress by circumstances’, where there is no express threat of ‘do this or else’ but the circumstances threatened death or serious injury unless the offence were committed. We will therefore have a brief look at the rationale and historical roots of justified necessity, before exploring the different requirements. In section 6 we will subsequently discuss the defence of duress. 98 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 251. 99 J. Horder, ‘Reshaping the Subjective Element in the Provocation Defence’ (Oxford University Press 2005), pp 139–140. 100 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), pp. 804–805. 226 Intersentia  Chapter VIII. Justifications and Excuses 5.1. R ATIONALE AND HISTORY Necessity is most easily understood as a justification of lesser evils. Faced with two unpleasant alternatives, the defendant decides to break the law in order to avoid a more serious evil to himself or others. In this conflict of interests, the defendant is justified for saving the prevailing interest. Saving the prevailing interest thus furthers the legal order.101 Whereas self-defence is a response to an aggressor and is grounded for a large part in the individual autonomy, necessity implies choosing the lesser evil and is therefore primarily grounded in the collective good of the legal order. For instance, if the defendant saved his own life by breaking a window of a burning building, he is not justified because of a right to save his own life: he is justified because the legal order values his life over a window.102 It is however important to understand that justifying the defendant’s behaviour because of a necessity situation has only been developed in the 20th century. There used to be quite some fear that the acceptance of justified necessity would undermine the validity and authority of rules. The defence was therefore not included in older criminal codes.103 For instance, the legislator of the 1886 Dutch Criminal Code, which currently still applies, covered only psychological necessity in Article 40, as can still be deduced from the wording of the provision: ‘He who commits an act as a result of an irresistible force is not criminally liable’. Only in 1923 did the Supreme Court accept that necessity could also arise in the absence of an irresistible pressure, based on the choice in favour of the most valuable interest, rather than personal danger to life and limb.104 The defendant, an optician, had sold a pair of glasses to a person who had apparently lost his. He sold them after opening hours, which was a criminal offence. The question was whether he was allowed to let his duty to help this person prevail over the duty to abide by the legal rule on opening times. The Court held that the duty to help should prevail and acquitted the defendant based on justified necessity, which was now held to be a part of Article 40 DCC.105 A similar development occurred in Germany. The old Criminal Code of 1871 only included a provision similar to duress.106 The lack of a general defence of 101 D. Ormerod, ‘Smith & Hogan: Criminal Law’ (Oxford University Press 2005), p. 315. 102 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), p. 138. 103 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), pp. 100–101. 104 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 177. 105 HR 16 October 1923, NJ 1923, p. 1329; M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), pp. 230–231. 106 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 723–725. Intersentia 227  Jeroen Blomsma and David Roef necessity meant, amongst other things, that medically indicated pregnancy terminations could be excused for the mother, but the doctor could rely on no such exculpation, even though the conduct was viewed as appropriate. This lacuna prompted the Supreme Court in 1927 to apply necessity to the doctor who performed an abortion on a woman who became suicidal because she was pregnant. Like the Dutch Supreme Court had done a few years ago, the defence was based on the principle of weighing of interests, accepting thereby necessity as a justification.107 However, it was not until 1975 that the current §34 GCC on justified necessity entered into force. In contrast to the development in the Netherlands and Germany, in England, the fear that a broad acceptance of justified necessity would weaken the authority of the law persists to this day. Thus the scope of necessity in England remains unclear, also due to the restrictive (offence-by-offence) approach of courts, the lack of parliamentary intervention, and finally the confusion stemming from the interchangeable use of necessity and duress (by circumstances). 5.2. CR ITER IA The criteria for necessity are clearly depicted in §34 GCC: ‘A person who, faced with an imminent danger to life, limb, freedom, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall apply only if and to the extent that the act committed is an adequate means to avert the danger.’ In order for necessity to justify a criminal offence, there must be a present danger for a legitimate interest. Next, similarly to self-defence, the defence must be capable of ending the danger and be the least intrusive means of aversion (subsidiarity). Finally and most importantly, the defendant should choose the lesser of two evils (proportionality). 5.2.1. Imminent danger of legitimate interest In principle, all legal interests may give rise to protection. The German provision on necessity lists some legal interests but makes clear that a danger to any other legal interest may also qualify.108 107 11 March 1927 RGSt 61, 242; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 676. 108 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 680; T. Fisher (ed.), ‘Strafgesetzbuch und Nebengesetze’ (C.H. Beck Verlag 2009), p. 305. 228 Intersentia  Chapter VIII. Justifications and Excuses The danger or conflict of interests can arise as a result of human conduct but it can also arise from natural causes, like a threatening fire or flood.109 The origin of the danger does not matter. What is important is that the danger or conflict must give rise to a necessity to act immediately. If official authorities are able to counteract the danger or solve the conflict there is no imminence. The scope of imminence is broader than in the context of self-defence. Whereas self-defence requires an attack, which means that at least an immediate situation of infringement of a legal interest is at hand, necessity requires only an imminent danger. An attack may not yet be imminent, whereas the danger already is. German courts have therefore accepted that the danger is imminent if harm is not yet directly pending, but a later averting of that danger will not be possible or only with much greater risk.110 This is also the Dutch111 and English112 perspective on the matter. There is consensus that some time for reflection is allowed in necessity. This follows from the requirement of meticulously weighing the competing interests and carefully considering whether there are alternatives to committing an offence.113 Nonetheless, imminence has been given an upper limit by arguing that situations of general necessity that linger over a longer period or affect many are excluded from necessity. There has to be a concrete and more or less acute situation of necessity. The general lack of housing, therefore, does not allow for squatting.114 Nor does poverty allow for stealing.115 It is argued that an essential feature of defences is that they apply only to exceptional circumstances where the implications of wrongfulness and blameworthiness are not warranted. Hence, in recurring situations defences cannot solve what the legislator should solve.116 109 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 110. 110 11 March 1927 RGSt 61, 242; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 732–733. 111 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 246. 112 Compare R v Hudson and Taylor EWCA Crim 2; A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 208. 113 HR 10 February 1987, NJ 1987, 662; 25 March 2003 BGHSt 48, 255; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 725. 114 Southwark London Borough Council v Williams 2 All ER 175; HR 12 July 2011, NJ 2011, 578. 115 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 807; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 306–307. 116 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 332; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 748 and 733–774. Intersentia 229  Jeroen Blomsma and David Roef 5.2.2. Subsidiarity As in self-defence, the means of aversion must be adequate and the least intrusive means to end the danger. The principle of adequacy is not that strict in most legal systems. After all, the defendant who exceeded the speed limit to get a person to the hospital did not know whether this would save that person. It is only required that the violation of the norm at least increases the chances of saving the interest of higher value.117 The other aspect of subsidiarity, the use of the least intrusive means, is applied more strictly. For example, if an ambulance is directly available, it is not necessary to exceed the speed limit to get someone to the hospital. In a German case, a journalist who took a knife on board a passenger aircraft to expose the failure of security measures could not rely on necessity, since carrying the knife on board was no longer necessary for the goal. He could have made his point by giving the knife away after passing security checks. By bringing the knife on board, he actually created a danger.118 A Dutch journalist who exposed failing security measures in an airport was also convicted for carrying a false employee pass after his investigative reports had ended, because this was no longer necessary.119 Alternatives to committing the offence include legal remedies or getting official help.120 Moreover, when the legislator has provided for clear exceptions to a legal prohibition and/or the possibility to apply for a permit or exemption, this generally excludes other means of solving the conflict of interests.121 On the other hand, the defendant may still be justified in case of exceptional circumstances that the legislator did not foresee. A good example of this possibility is the Dutch medical cannabis case.122 The case was as follows: two defendants, a person suffering from multiple sclerosis (MS) and his wife, were charged with cultivating cannabis. This has always been criminal in the Netherlands, tolerated by the Public Prosecution’s Service only in small quantities for individual consumption. The Drugs Act only allows for a medical exemption to the injunction, which, according to the Public Prosecutor, implies that necessity is precluded. The defendants did not ever apply for the exemption. The Court of Appeal and Supreme Court allowed the defendants to rely on necessity nevertheless, because the defendants knew that applying for the 117 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 734; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 683. 118 25 October 2005 OLG Düsseldorf NStZ 2006, 243. 119 Hof Amsterdam 28 April 2011, ECLI:NL:GHAMS:2011:BQ2981. 120 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), p. 764. 121 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 164. 122 HR 16 September 2008, NJ 2010, 5. 230 Intersentia  Chapter VIII. Justifications and Excuses exemption would be unsuccessful, as only companies could be given a permit. In other words, there was no real alternative available to the defendants. Necessity was accepted because the circumstances were held to be exceptional. First, it was established that cannabis helped to relieve pain and prevent spastic seizures and that at a certain stage this is the only substance that can help MS patients. Second, it was established that the medicinal cannabis available in pharmacies did not have the desired effect. Third, the danger of cannabis sold in ‘coffee shops’ was that it was full of fungi, bacteria and pesticides, to which MS patients are very sensitive. Taking all of this into account, both the Court of Appeal and the Supreme Court held that the conflict of interests – the criminal offence versus the relieving of pain and prevention of spasticity – could be settled in favour of the latter. This means the defendants were (from then on) justified to grow cannabis.123 This case demonstrates that even in situations of strict and clear legislation, necessity should not be precluded because there will always be situations that the legislator did and could not foresee. 5.2.3. Proportionality Since necessity is by definition a defence based on a balance of evils, proportionality plays a decisive role. The actor should choose the lesser of two evils. This does not, however, consist of an abstract valuation of legal interests, but a concrete test based on the circumstances of the case. All interests that are directly and indirectly involved should be weighed. In particular the following must be taken into account: the nature, origin, intensity and likelihood of the danger, the nature and scope of the threatened damage, the relationship in value and rank between colliding interests, the benefits for society, prior fault, the possible irreplaceability of the damage and the chance of saving one or both interests.124 The exact degree of proportionality remains controversial. Some submit that the balancing exercise requires that the protected interest substantially outweighs the sacrificed interest,125 whereas others argue that the difference between the conflicting interests must not be great, only evident.126 Some include in necessity that the saved interest must at least be equal to or greater 123 See also: J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 307–308. 124 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 127; M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 252. 125 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 127. Compare ‘substantially’ (wesentlich) in 34 GCC. 126 M. Bohlander, ‘Principles of German Criminal law’ (Hart Publishing 2009), p. 113; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 766–767. Intersentia 231  Jeroen Blomsma and David Roef than the sacrificed interest.127 This means that situations in which interests of equal value conflict can also be solved under necessity. However, according to a traditional view, there is one major exception to this: lives can never be traded against each other. Necessity is principally rejected because a valuation of lives is prohibited. Every life has the same value, which, for example, means that a doctor may not sacrifice a patient with small chances for survival to save one with high chances. Nor may the lives of some be sacrificed to save the lives of many.128 The refusal to apply necessity in the case of one life versus another is also largely based on the principles of human dignity and autonomy. This explains, for example, why the German Constitutional Court held unconstitutional and void §14 (3) of the Traffic Security Act 2005 that would permit the shooting down of a hijacked plane to prevent it from being used for a terrorist attack like those of 9/11. The Court refused to consider the fact that the passengers in such a situation were already doomed. The innocent129 passengers would become mere means to an end, and by using people as objects, the human dignity and right to life, which enjoy the highest protection, would be violated.130 The Court thus put much weight on the prohibition on the quantification and valuation of lives, rejecting the perspective that victims, who are designated to die in any event, may be sacrificed. Nonetheless, this decision does not necessarily imply that liability should follow. According to some scholars there could still exist a supra-legal excusatory defence.131 Others reject this solution in favour of justifying the shooting down.132 In any event, the German position shares in this respect the English approach expressed in R v Dudley and Stephens. However, recently there seems to have been some change in the English law of necessity. The ruling in the well-known case of Re A (Children) is often interpreted as that a necessity plea is now possible to a charge of murder. In this case the court was asked to rule on the legality of a proposed surgery of conjoined twins. Jodie and Mary were conjoined at the abdomen and both sisters relied on Jodie’s heart. The two evils were the following: if Mary and Jodie would be separated, Mary would surely die, as she 127 G.A.M. Strijards, ‘Strafuitsluitingsgronden’ (Tjeen Willink 1987), pp. 49–50. 128 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 738–739; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 686. 129 If the aeroplane is unmanned or only occupied by persons who want to use it as a weapon, it may be shot down. This was also the case in 2003 when a confused individual threatened to use a hijacked sports plane as a weapon on Frankfurt. Fortunately, the threat was not executed and the plane landed safely. See: J. Kersten, ‘Die Tötung von Unbeteiligten – Zum verfassungsrechtlichen Grundkonflikt des §14 III LuftSiG’ Neue Zeitschrift für Verwaltungsrecht (2005), p. 661. 130 15 February 2006 BverfG NJW 2006, 751. See also: A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 687. 131 See: A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2014), Vorbem. §§32ff Mn 117. 132 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), pp. 112–113. 232 Intersentia  Chapter VIII. Justifications and Excuses was incapable of independent existence; however, if they were not separated, Jodie’s heart would eventually fail within months, leading to the death of both sisters. The Court of Appeal acknowledged that R v Dudley and Stephens was frequently interpreted as authority for the rule that necessity could never apply to a charge for murder. However, the Court decided that the policy considerations behind the decision of R v Dudley and Stephens did not apply to the present case. Here are some crucial arguments by Lord Justice Brooke who based his decision squarely on the grounds of necessity. R v A (Children) (conjoined twins) EWCA Civ 254 ‘[The case of R. v Dudley and Stephens] has sometimes been taken as authority for the proposition that necessity can never under any circumstances provide a legal justification for murder. While it is true that a passage in the speech of Lord Hailsham in R v Howe 1 AC 417 at p 429C-D might be interpreted to this effect, in my judgment neither that passage nor a similar passage in Lord Mackay of Clashfern’s speech at p 453 C-D displays any evidence that they had in mind a situation in which a court was invited to sanction a defence (or justification) of necessity on facts comparable to those with which we are confronted in the present case. […] I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens, supported as it was by the House of Lords in R v Howe. These are, in short, that there were two insuperable objections to the proposition that necessity might be available as a defence for the Mignonette sailors. The first objection was evident in the court’s questions: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality. In my judgment, neither of these objections are dispositive of the present case. Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. Because her heart, brain and lungs are for all practical purposes useless, nobody would have even tried to extend her life artificially if she had not, fortuitously, been deriving oxygenated blood from her sister’s bloodstream. It is true that there are those who believe most sincerely – and the Archbishop of Westminster is among them – that it would be an immoral act to save Jodie, if by saving Jodie one must end Mary’s life before its brief allotted span is complete. For those who share this philosophy, the law, recently approved by Parliament, which permits abortion at any time up to the time of birth if the conditions set out in Section 1(1)(d) of the Abortion Act 1967 (as substituted) are satisfied, is equally repugnant. But there are also those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a good prospect that she might live a happy and fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to Lord Coleridge and his fellow judges [in R v Dudley and Stephens]. Intersentia 233  Jeroen Blomsma and David Roef There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency. […] There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with “unjust aggression” […] None of the formulations of the doctrine of necessity which I have noted in this judgment make any such requirement: in this respect it is different from the doctrine of private defence. If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people’s lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted. According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.’ Thus a balance was struck in favour of separation. By emphasising the fact that Mary was designated to die and was the source of the danger, the court distinguished this case from other similar cases, like that of R v Dudley and Stephens, where someone else could have been sacrificed too.133 The cabin boy was selected because he was weak and had no children, but he was an autonomous person who posed no threat to the defendant.134 6. DUR ESS The defence of duress (or psychological necessity) encompasses situations where the defendant was under such a pressure that he could not reasonably be expected to abide by the law. Traditionally, these situations arise when the 133 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 125. 134 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 805. 234 Intersentia  Chapter VIII. Justifications and Excuses defendant was threatened that if he did not commit the offence, he or someone close to him would be killed or seriously injured. Duress can however also arise out of circumstances, similarly to necessity.135 6.1. R ATIONALE Duress is largely based on the rationale of psychological pressure.136 Duress concerns cases where the actor through external circumstances is abnormally coerced in his freedom to choose, as a result of which he cannot be expected to act in conformity with the norm.137 Related to this rationale is the view of the defence as a concession to human frailty in cases where virtually no one can be expected to act differently. The law cannot demand self-sacrifice or heroism from people.138 It is also argued that because the human urge for self-preservation is irresistible, the law cannot influence the defendant to act differently. Criminal law should not be applied against the person who will not be influenced by it. The threat of punishment will not be able to change the actor from acting differently, as was already illustrated by the Kantian example of the shipwreck case. The actor will choose the possibility of a death penalty in the near future over a certain and imminent death. In other words, duress excuses the actor because special deterrence is ineffective against him.139 6.2. CR ITER IA Although the national formulas of duress differ, the criteria are similar in most legal systems. Thus §35 (1) GCC provides: ‘Whoever, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply to the extent that the perpetrator could be expected under the circumstances to assume the risk, 135 This distinction between duress by threats and duress by circumstances is still in use in English law, and was also made in German and Dutch law, although they are now treated under the general heading of duress. 136 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 210. 137 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 156; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 964–966 and 1014. 138 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 317. 139 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechens- lehre’ (C.H. Beck Verlag 2006), pp. 965–966, 972, 977–978, 987. Intersentia 235  Jeroen Blomsma and David Roef in particular, because he himself caused the danger or was under a special legal obligation to do so; the sentence may be mitigated pursuant §49 (1) unless the offender was required to accept the danger because of special legal obligation to do so.’ The defendant committed the offence because he was impelled by an imminent danger or threat to important legal interests, such as his life and limb. Therefore, he could not be expected to have acted differently. Like in other defences, prior fault and the special position of the defendant influences the scope of duress. So does proportionality, which places an upper limit on what offence can be excused in comparison to the threat. 6.2.1. Legitimate interests In England and Germany, the danger that is averted must be directed against life, limb or personal liberty of the defendant or that of a relative or a person who is close to him. This limited list of interests is explained by reference to the exceptional character of the defence and its psychological rationale, which presupposes that only the gravest threats can compel the defendant to break the law.140 In Dutch law a contrary approach is followed. Legal interests are not excluded from being protected under duress a priori, but the scope of the defence is limited through the other conditions, such as proportionality. It is clear that the more serious and personal the nature of the threat, the more likely it is that the actor could in fact not resist. Secondly, the subsequent normative question is whether the defendant should have resisted. The defendant will therefore also not be excused for committing a serious offence if he was compelled to do so by mere moral pressure.141 Hence, the difference between the two approaches is mitigated, just as in self-defence. There will hardly be a difference in outcome. In all legal systems, the rule is that the more serious the crime the actor is coerced to commit, the more irresistible the threat needs to be.142 6.2.2. Imminent danger Similarly to necessity, the imminent threat or danger need not originate from human action; it can also originate from objects of nature. Any extraneous force, urge, threat or pressure to which a legal subject cannot offer resistance suffices. Thus any coercion that arises from characteristics of the defendant himself does 140 R v Hasan UKHL 22; M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), pp. 123–124. 141 M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), pp. 97–99, 177–178, 187, 191 and 320–321. 142 R v Abbott AC 755; J. Horder, ‘Excusing Crime’ (Oxford University Press 2006), p. 95. 236 Intersentia  Chapter VIII. Justifications and Excuses not qualify for duress.143 For example, defendants who were having suicidal thoughts because of their imprisonment were not excused for breaking out of prison.144 In another case, by contrast, the defendant broke the law because of fear that his wife would otherwise commit suicide. Duress was accepted because the suicidal tendencies were external to the defendant.145 Like in self-defence-excess, there must be a causal connection between the external event and the pressure, as well as between the pressure and the offence. The actor committed an offence because he could not reasonably resist the pressure and this lack of control must be caused by something that is generally accepted as such a cause.146 Since duress is about a pressure which the defendant reasonably could and should not resist, he is compared to the reasonable person. The question is what can reasonably be required of the defendant and to what extent he should have resisted the urge to commit the offence. First of all, the pressure need not be absolute or insurmountable. The defendant is not compared to persons of special virtue: heroism is not required.147 Secondly, certain characteristics of the defendant are taken into account when assessing whether or not he should have resisted the pressure. In England, characteristics such as pregnancy, age, gender and even mental disorders are taken into account.148 In the Netherlands, age also limits what can legitimately be expected of a person. The case where a 17-year-old boy was being sexually abused by an older man is often mentioned. He wanted to end the abuse when he got a girlfriend, but the man wanted to hear nothing of it and threatened to tell his parents. In despair, the boy attacked the man with an axe, seriously injuring him. He was excused on grounds of duress, taking into account the childlike nature of the boy.149 6.2.3. Subsidiarity The criminal offence must be capable of ending the danger and at the same time be the least intrusive means available. The conditions are similar to those in necessity. There must have been no evasive action the defendant could 143 D. Ormerod, ‘Smith & Hogan: Criminal Law’ (Oxford University Press 2005), p. 301; M.M. Dolman, ‘Overmacht in het stelsel van strafuitsluitingsgronden’ (Wolf Legal Publishers 2006), p. 323. 144 R v Andrew Rodger and Keith John Rose EWCA Crim 1760. 145 R v Martin (Colin) EWCA Crim 2. 146 A.A. van Dijk, ‘Strafrechtelijke aansprakelijkheid heroverwogen’ (Maklu 2008), p. 23. 147 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), pp. 739 et seq., 789–790 and 795–796. 148