Criminal liability for third person's act: case of release on bail

I.2.1.2. justifications resulting from the necessity to commit a crime

1. self defense

A person is justified of self defense if he/she acts against unjust aggression to defend him/herself, the third person as well as goods, if not, the act would be unlawful. Self-defense is based on the failure of police authorities to prevent the aggression. It is not an act of private justice, the purpose is less to punish than to prevent harm^69(*).

Self-defense is not obligation; it is a permission of the law, so, we can choose if there is a real choice, not to defend oneself. The law provides that aggression must be currently envisaged. In principle, any infraction ceases to be as such if it is committed in case of self-defense. Aggression must be current (immediate) and unfair to stay in self-defense. Self-defense is a defense against aggression, if there is not act of aggression it is an attack not a defense^70(*). There must be a proportion between attack and defense. Since there must be a proportion between attack and defense, we can recognize the legitimate defense of property if the harm inflicted in the attack is comparable to the value, for example, of goods that it threatened^71(*).

Unjust aggression is not that one ordered by the legitimate authority or by the law, it is the aggression against the law^72(*). This means that if the aggression is just, the defense does not legitimate. Self defense is deferent from necessity state where self defense requires some conditions: aggression and defense.

2. necessity in case of an exceptional situation

Necessity is a situation in which a person commit an unlawful act to avoid an imminent or a current danger that violates a relevant rights. The person shall choose to commit an offence or to let the occurrence of danger^73(*). According to DAVID Ormerod, the necessity is a situation in which a person is faced with a choice between two unpleasant alternatives, one involving his committing a crime and the other some evil to himself or others^74(*).

Necessity has the effect of removing criminal liability, but unlike the other justifications, it does not preclude civil liability of the agent^75(*).

The doctrine in general and certain legislations affirm that necessity in criminal law is a defense. There is a necessity when an individual can only escape the evil by committing an offense for protecting his own legitimate interest or of others. Self-defense is a special case of the necessity requires to protect the individual himself by committing acts prohibited by law. But self defense and necessity are different. In self-defense, the acts are directed against the perpetrator of the aggressing on the contrary, in the necessity victim is a person totally out of the evil that threatened the perpetrator of a criminal act^76(*).

Necessity state is sometimes confused with moral constraint, but they are different on where the necessity case do not require external will that force to do so.

* ⁶⁹P. Canin, Op. Cit. p.85

* ⁷⁰M.Georges Brière de l'Isle, Op. Cit., pp.158-168

* ⁷¹Idem, p.163

* ⁷²Idem, p.165

* ⁷³P. Canin, Op. Cit., p.88,

* ⁷⁴ D. Ormerod, p.315

* ⁷⁵ penal code, Op. Cit., art.71

* ⁷⁶M.Georges Brière de l'Isle, Op. Cit., pp. 178-179