[...]... system in which individuals are aware of the costs and benefits of various courses of action At this point he returns to the similarities, described earlier, between conditions which excuse under the criminal law and those which invalidate marriages, contracts and wills In the absence of such invalidating conditions as accident, mistake and insanity, contracts entered into without the individual making... prefer that a principle (justification) lead us to the denial of criminality, not the other way around In addition, as pointed out earlier, some excuses deny that the definition of the offence is fulfilled 26 PSYCHIATRIC ASPECTS OF JUSTIFICATION, EXCUSE AND MITIGATION A more popular definition follows the first of the two meanings of justification described here: justification, unlike excuse, appeals... actor’s intention or purpose in doing as he did 12 One could quibble with this: we speak of someone ‘knowing their own mind’, suggesting that in some instances the subject and the object of knowing can be identical But the substance of Planck’s point stands Even if one knows one’s own mind, it is difficult to see how one could fully know the part which does the knowing 13 In England, Lord Denning said: In. .. by this excuse, in which case no crime is deemed to have occurred.4 Finally, even when excuses do not deny the presence of an actus reus or mens rea, as is the case in duress,5 it has been argued that the criminal nature of the act is being denied by a successful defence.6 24 PSYCHIATRIC ASPECTS OF JUSTIFICATION, EXCUSE AND MITIGATION In practice, the distinction between justification and excuse is... condition of punishment, responsibility for a criminal act A criminal justice system which reflects this requirement must take into account, when assessing culpability, the defendant’s mental state at the time he acted 20 PSYCHIATRIC ASPECTS OF JUSTIFICATION, EXCUSE AND MITIGATION STRUCTURE OF THE BOOK This book addresses the question of how psychiatric disorders influence the processes of justification, excuse. .. of an individual is governed by his mental and physical states, and these are in turn the products of antecedent mental and physical states PRELIMINARIES 15 This gulf, between the determinism of psychiatry and the requirement of the criminal law that humans be seen as acting freely, was remarked upon, with a hint as to where his own allegiance lay, by Judge Levin in the United States: Psychiatry and. .. Whether because of the lack of clarity of some writing on the subject, or the reduced importance of the distinction in the law of England and Wales, judges, according to Ashworth (1995a, p.132), frequently confuse justification with excuse Smith (1989, p.126) describes the distinction as of limited value in the development of the general defences Lord Goddard seemed to be using the terms interchangeably... seeming unfairness was something which would just have to be tolerated An acceptance of the truth of determinism does, 14 PSYCHIATRIC ASPECTS OF JUSTIFICATION, EXCUSE AND MITIGATION however, call into question the validity of the second and third criteria for punishment As described above, the second requires that the mental element of the offence be present, and the third provides exemptions to certain... do this.19 It seems more likely that the defence of necessity in English criminal law operates according not to one but to two principles In R v Dudley and Stephens the court was concerned with the relative value of two wrongs: the killing of the cabin boy on the one hand, and the starvation of the other men in the boat on the other The American Law Institute’s Model Penal Code (1985) is similarly... justification), relying, in their view, on a ‘realistic assessment of human weakness’ (Perka et al v R [at 2]) This is a concept of necessity very different from that described by Stephen (1883, pp.108–110), the court in R v Dudley and Stephens and the American Law Institute Self-defence The law in England and Wales makes a distinction between the use of force in defence of oneself or others and its use in the . PSYCHIATRIC ASPECTS OF JUSTIFICATION, EXCUSE AND MITIGATION This gulf, between the determinism of psychiatry and the requirement of the criminal law that. Cataloguing in Publication Data Buchanan, Alec. Psychiatric aspects of justification, excuse, and mitigation : the jurisprudence of mental abnormality in Anglo-American