DEFENCES

LEARNING OUTCOMES

• To understand the requirements of each defence and its applicability

• To apply the defences to a factual situation

• To criticize and comment on the different defences

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INTRODUCTION

Considers the law from the Defendant’s point of view.

Two main types:

a) General defences:

(i) full acquittal;

(ii) generally available for all offences (except duress); and

b) Specific and partial defences:

(i) reduction of the charge;

(ii) only available for murder.

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Introduction (cont’): • There are 3 broad categories of general defences:

Defences

Acting permissibly

Self-defence

Necessity

Chastisement

Consent

Acting under pressure

Duress

Coercion

Entrapment

Superior Orders

Mental condition

Automatism

Insanity

Infancy

Intoxication

Mistake

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PRIVATE/SELF DEFENCE • Authority: section 3 Criminal Law Act 1967

section 76 Criminal Justice & Immigration Act 2008

• Elements: R –v- Martin:

a) victim poses a threat;

b) threat unjustified;

c) use of force necessary;

d) degree of force reasonable; and

e) defend himself or another or property.

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Private/self defence (cont’): • The victim must pose a threat

R v Hitchens

• The threat must be unjustified

Jones

• The use of force must be necessary

a) Bird

b) McInnes

c) Attorney-General’s Reference (No. 2 of 1983)

d) Attorney-General for Northern Ireland’s Reference (No. 1 of 1975)

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Private/self defence (cont’):

• The use of the force must be reasonable

a) Shaw:

b) Clegg:

c) Yaman

d) Oye

• The defendant must be acting in order to defend himself or another or property

Bird

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Private/self defence (cont’): • APPLICABILITY:

a) Renouf;

b) Blake –v- DPP;

c) DPP –v- Bayer

• MISTAKE & SELF- DEFENCE:

a) Gladstone Williams

b) Beckford –v- R

• SELF-INDUCED SELF DEFENCE

Rashford

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Private/self defence (cont’):

• HRA AND SELF DEFENCE

a) Article 2 ECHR

b) Andronicou and Constantinou –v- Cyprus

c) McCann –v- UK

Effect of Article 2 of the ECHR:

a) the level of force; and

b) mistake as to the threat.

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NECESSITY

• General view

The courts have not accepted a general defence of necessity:

a) Dudley and Stephens

b) Kitson

c) Southwork LBC –v- Williams

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Necessity (cont’): • Limited defence a) Damage or theft in the public interest. b) Damage of own property or interferes with

another’s property in order to save his own person or property.

c) Person who is unable to consent. Re F (Mental

patient: Sterilisation) d) Breaking of traffic regulations Johnson –v-

Phillips e) Defence to murder Re A (Children) (Conjoined

Twins: Surgical Separation).

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CHASTISEMENT

• Examples:

a) A –v- UK

b) R –v- H

c) s58 Children Act 2004

• Only a defence to assault or battery.

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DURESS

2 Forms

Duress by threats

Threat from another person

Duress of circumstances

Threat from surrounding

circumstances 13

Duress (cont’) • Authorities:

a) R v Graham approved in R –v- Howe:

2 questions:

“(i) Was the D impelled to act because as a result of what he reasonably believed the other had said or done, he had good cause to fear that if he did not so act the other would kill him or… cause him serious physical injury;

(ii) If so, would a sober person of reasonable firmness sharing the characteristics of the D would have responded to whatever he reasonably believed the other said or did by committing the crime.”

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Duress (cont’) b) Hasan:

(i) threat of death or serious injury; (ii) against D or immediate family or someone close

to him or someone for whom D would reasonably regard himself as responsible;

(iii) D’s perception of the threat and response assessed objectively;

(iv) D’s conduct was directly caused by the threat; (v) no evasive action which could reasonably have been

taken; (vi) threats not voluntarily opened to; and (vii)unavailable for murder, attempted murder or

treason.

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Duress (cont’) • THE D MUST ACT BECAUSE OF A THREAT OF

DEATH OR SERIOUS INJURY

Considerations:

• The defendant must act because of the threat or the circumstances and not for any other reason.

a) Valderrama-Vega

b) DPP –v- Bell

c) DPP –v- Mullally

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Duress (cont’)

• The threat of death or GBH

a) Baker and Wilkins

b) R v A

• Victim of the threat

a) Ortiz:

b) Hurley and Murray

c) Conway

d) R –v- Z and Abdul-Hussain

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Duress (cont’) • Threat must not come from the defendant himself.

a) Rodger and Rose

b) R –v- Quayle

• Reasonable belief of a threat.

a) Graham

b) Cairns:

c) Safi and others

d) R –v- Z

• Opportunity to escape: Heath

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Duress (cont’)

• The threat of imminent harm

a) R –v- Abdul-Hussain; Aboud; Hasan; Naji; Muhssin; Hosham

b) Hasan

c) R –v- N

• Good cause to believe the threat could be carried out.

• D must not have put himself in a position in which he could have been threatened in this way

R –v- Z

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Duress (cont’)

• THE REASONABLE PERSON MUST HAVE RESPONDED TO THE THREAT IN THE WAY THAT THE DEFENDANT DID

a) Howe

(i) person of reasonable firmness with the D’s characteristics.

(ii) severity of the threat and gravity of the required crime and the D’s response.

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Duress (cont’)

b) Defendant’s characteristics which should be attributed to the reasonable person.

(i) Graham

(ii) R –v- Bowen

• Availability of the defence

R –v- Howe

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Duress (cont’)

• Relationship between duress, duress of circumstances and necessity

a) S (DM)

b) Objections to the above:

(i) Availability of defences.

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Duress (cont’)

(ii) Immanency of threats of death or GBH.

(iii) Concepts behind the defences.

(iv) Creation of a duty to act.

(v) Excusatory and justificatory.

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COERCION • Authority: s 47 Criminal Justice Act 1925

• Elements:

a) A wife who commits crime in her husband’s presence.

b) Husband coerced her into committing the crime.

• Availability:

Defence is available to all crimes except treason or murder.

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ENTRAPMENT

• Sang

• Looseley

• Teixeira de Castor –v- Portugal

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AUTOMATISM • Definition:

a) Bratty –v- Attorney-General for Northern Ireland:

“acts done while unconscious and to spasms, reflex actions and convulsions…”

b) Watmore –v- Jenkins:

“an involuntary movement of the body or limbs of a person”.

c) Broome –v- Perkins

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Automatism (cont’)

•A complete loss of voluntary control

Attorney-General’s Reference (No. 2 of 1992)

•An external factor

a) Rabey

b) R –v- T

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Automatism (cont’)

• The defendant was not at fault in causing the condition

a) R –v- Bailey

b) R –v- Quick and Paddison

hypoglacaemia = automatism

c) R –v- Hennesy

hyperglacaemia = insanity

d) R –v- Burgess

sleepwalking = insanity 28

INSANITY

Relevant in 2 ways

Unfitness to be tried

Renders trial impracticable

Unfit to be tried

Plea of insanity at

trial

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Insanity (cont’) • Unfitness to be tried.

a) Renders trial impracticable

s 1(1) Mental Health Act 1983

b) Unfitness to be tried

(i) ss4 and 4A Criminal Procedure(Insanity) Act 1964

(ii) M

(iii) R –v- H (Fitness to Plead) 30

Insanity (cont’)

• Plea of insanity raised at trial

Definition: M’Naghten’s Rules:

“… the party accused was labouring under a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing or if he did know it, he did not know he was doing what was wrong…”

Confirmed in R –v- Sullivan 31

Insanity (cont’)

Disease of the mind

Defect of reason

Not know the nature or quality

of the act

Not know that the act was

wrong

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Insanity (cont’)

• Elements

a) Disease of the mind

Kemp

b) Defect of reason

Clarke

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Insanity (cont’) c) The defendant did not know the nature and

quality of his act or that it was wrong.

(i) Did not know the nature and quality of his act

(aa) Codere

(bb) R –v- Sullivan

(ii) Not knowing that the act is wrong

(aa) Windle

(bb) DPP –v- Harper 34

Insanity (cont’)

• Miscellaneous:

a) Human Rights Act 1998 and the definition of insanity

i) Article 5 of the ECHR

ii) Winterwerp –v- Netherlands

b) Insanity and offences of strict liability

i) Hennesy

ii) DPP –v- Harper

c) Insanity and intoxication

i) Lipman

ii) Burns

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Automatism cf Insanity cf DR Automatism Insanity DR

Focus Complete loss of voluntary control

Disease of the mind

AOMF

Cause External Internal External/internal

Affects AR MR AR & MR

Effect - Defect of reason Affects an ability

Availability All offences All offences Only murder

Verdict Not guilty Not guilty by reason of insanity

Voluntary manslaughter

Result Release Mandatory hospitalization

Maximum life imprisonment

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CHILDREN

• Under 10 years old

S50 Children and Young Persons Act 1933

• Child between 10 to 14

S34 Crime and Disorder Act 1998

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INTOXICATION • Consumption of alcohol and/or drugs.

• Relevant in 3 ways:

a) Defendant uses it to show he lacked MR;

b) Prosecution uses it to establish his MR; and

c) Certain crimes specifically refer to being intoxicated.

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Intoxication (cont’): • Intoxication as a denial of the MR

a) Beard :

Defence only if incapable of forming MR.

b) Pordage:

Question: did the defendant in fact form the necessary MR even though intoxicated?

c) R –v- Kingston:

D had MR = not a defence.

d) Allen

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Intoxication (cont’):

• Involuntary intoxication and no MR

a) Involuntarily intoxicated = forced to drink/consume drugs

b) Involuntarily intoxicated + lacks MR = must be acquitted (specific/basic intent crime).

R –v- Kingston

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Intoxication (cont’):

• Voluntary intoxication

a) Voluntarily intoxicated + cannot form MR = acquittal (specific intent crime).

b) Drunken intent = an intent

DPP –v- Majewski

• Intoxication induced with the intention of committing a crime

“Dutch courage”= guilty.

Attorney-General for Northern Ireland –v- Gallagher

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Intoxication (cont’):

• Present law

1. Voluntarily or involuntarily intoxicated + MR = guilty.

2. Involuntarily intoxicated + no MR = acquittal.

3. Voluntarily intoxicated + no intention + reckless = acquittal of a specific intent crime but guilty of a basic intent crime.

4. Dutch courage = guilty even if at the time of the offence he lacked the MR.

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MISTAKE • Usually considered in light of its effect on another

defence.

• 2 types:

a) Mistake as to facts; and

b) Mistake as to law.

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Mistake (cont’):

•MISTAKES AS TO THE FACTS:

•3 types:

a) reasonable mistake

b) unreasonable mistake

c) druken mistake.

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Mistake (cont’):

• Self-defence

1. Reasonable mistake:

Williams: can rely + judged on facts as believed

2. Unreasonable mistake:

The defendant’s belief cannot be unreasonable.

3. Drunken mistake:

Hatton: cannot rely

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Mistake (cont’):

• Duress

1. Reasonable mistakes:

Martin: Can rely

2. Unreasonable mistake: cannot rely

3. Drunken mistake: cannot rely

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Mistake (cont’):

• Loss of Control

1. Reasonable mistake: can rely.

2. Unreasonable mistake:

Section 55(3) CJA 2009: can rely

Section 55(4) CJA 2009: cannot rely.

3. Drunken mistake:

Unlikely to be able to rely on the defence.

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Mistake (cont’): • Consent

1. Reasonable mistakes: can rely.

2. Unreasonable mistake: cannot rely.

3. Drunken mistake:

(i) Fotheringham

(ii) Richards and Irvin

(iii) Jaggard –v- Dickenson

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Mistake (cont’):

• MISTAKES AS TO THE LAW:

• a) Mistakes which do not negate MR

“Ignorantia juris neminem excusa”

Not negate liability except:

(i) Statutory instrument has not been publicize

(ii) Wrong advice by a state agency.

• b) Mistakes of law which do negate the MR

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