Monday, March 13, 2017

Guest Post: Justifications, Excuses and General Exceptions

(This post has been co-authored by Kaustav Saha, who is currently a BCL candidate at Exeter College, University of Oxford)

This post considers two issues from the realm of defences in criminal law. The first part, co-authored with Kaustav, engages with the debate concerning treatment of justificatory and excusatory defences. In the second, unrelated, part, I focus on the Indian Penal Code 1860 [IPC] and examine a particular issue regarding the Indian statutory framework surrounding general defences. 

Justifications, Excuses and Wrongfulness
Justifications and excuses differ considerably in their normative implications as well as practical effects. A useful barometer [which may break down on severe scrutiny], is that justifications are attached to the circumstances of an offence, while excuses arise from the personality of defendants. But this does not consider a deeper question, which is whether persons invoking these defences should be viewed differently? Should claiming a justificatory defence as opposed to an excusatory defence attract different consequences?

To answer this, think of justifications and excuses differently. A standard view in the literature is that while justifications deny wrongdoing, excuses deny responsibility. In the former, a defendant is denying that she committed a wrong, while in the latter she asserts that she should not be held liable (be excused) despite the wrongful character of her actions. Professor Gardner argues this distinction is misleading, for by invoking a justification the defendant is not denying wrongdoing but is in fact conceding it. The innate wrongfulness of hurting a person does not change, whether done by a police officer chasing a suspect or a person killing for personal motives. For him, thus, a justificatory act cannot be considered as something that guides conduct. In this, his view is opposed by Professor Simester who argues justifications do indeed offer motivating reasons to engage in certain conduct. These acts, according to him, are not merely tolerated but are morally permissible and this takes away from the wrongfulness of the act. 

We find Professor Gardner's view more acceptable that defences cannot serve as positive reasons for acting. Most importantly, because it supports the desirable principle that accepting this reinforces a cynical view of the law and militates against the idea that people may aspire to standards of conduct that go above and beyond what the law may demand from them.

It may well be argued that this debate about 'wrong' is, well, purely academic. After all, most criminal law functions do not care about the innate wrongfulness and the successful pleading of both justificatory and excusatory defences completely takes away the label of criminality which matters most. The different consequences - insanity may lead to the defendant being admitted to a facility - is not concerned with the issue of 'wrong' either. But we argue that this debate is not without practical utility. For instance, consider this in context of the allegations of police brutalities in the USA. One could argue that maybe, in that setting, Professor Simester's view would resonate with officers often considering the ability to take violent action itself as reason to take that action. The existence of a duty-based justification served as reason to shoot suspects because the justification dissolved the wrongfulness of causing harm.

Could this view be extended to other scenarios? For instance, an over-exuberant exercise of detention powers by officials when dealing with anti-terrorism legislation? Or in India, the carrying out of search, seizure, and arrests when dealing with economic offences which are consistently labelled as 'threats of economic security of the nation' by the State. We are unaware of empirical studies specifically testing the arguments of Professors Gardner and Simester in such duty-contexts. It may offer fantastic insight into how analysis of justificatory conduct is highly context dependant.

The IPC and General Exceptions
This brings me to the second issue. Chapter IV groups Sections 76 to 106 of the Indian Penal Code 1860 [IPC] under the title of 'General Exceptions' (not General Defences, as is commonly assumed). These apply to offences under the IPC and beyond [See Section 40 IPC] and are basis upon which criminal liability can be negated. The IPC does not contain any distinction between how the different defences are treated, and also stays away from the debate of justifications and excuses. Exceptions normally fully absolve the defendant of criminal liability, and the Code expressly indicates where this is not so [Section 86 and voluntary intoxication, for instance]. During trial, the burden of proving the existence of facts to claim an exception is placed upon the defendant [Section 105, Indian Evidence Act 1872]. Is this fair? 

In this regard, the Indian system differs from how criminal trials operated (and continue to operate) in the UK [under common law, the burden was only placed on a defendant when claiming a defence of insanity]. A frequent argument justifying the reversing of burdens [quite prevalent across criminal law today], is how the defendant is best-placed to offer proof for facts especially within her knowledge. The Indian Evidence Act statutorily recognises this principle through Section 106. Does this logic of the defendant being 'best-placed' sufficiently explain away the rule of Section 105? I argue that it  is mostly acceptable, but for the position in Section 81 of the IPC, which is a mixture of both, subjective and objective, positions in the criminal law.

What are these subjective and objective positions? A subjective position in criminal law means that you view the existence / non-existence of facts from the eyes of the defendant. An objective view would view things from the standpoint of an outside observer. Naturally, fidelity to either position can attract very different consequences on issues of liability as it poses questions to the very existence of fault elements [as I explained in context of attempts once on the Blog]. If we look at the General Exceptions in the IPC, it becomes apparent how the Code adopts different positions for the different exceptions it provides. For instance, consider Section 79 which says "nothing is an offence which is done by any person who is justified by law, ow who by reason of a mistake of fact and not be reason of mistake of law in good faith, believes himself to be justified by law, in doing it." The text, together with the illustration, confirm the subjective position is adopted: it tells us that an officer is justified for arresting someone she believed had committed murder, though it may turn out that the person was acting in self-defence

But move to Section 81 which is India's version of a defence of duress: "nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property." This is followed by an important injunction: "it is a question of fact in such a case whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm." The initial subjective position is interposed with a clear objective caveat!

I argue that where, after claiming an exception, the Code adopts an objective position regarding the existence / non-existence of facts upon which a successful claim depends, it is unfair to place the burden upon a defendant to prove such facts. It is not a fact especially within the knowledge of the defendant. Rather, it is perhaps easier for the prosecution to furnish statistics. Even if we imagine the state of play, shifting the burden on the prosecution would appear more suitable. If the court is unconvinced with the initial plea itself, then the question would not arise. If the court thinks there is an arguable case, then have the prosecution show why the exception cannot be successfully claimed.

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