#3084 - Defences 2 (Self Defence, Infancy, Duress, Necessity - GDL Criminal Law

Self-Defence

- Overlapping sources: common law + statute (often not specified: same rules apply).

• common law: defend self or another ([Smith and Hogan]: ‘private defence’).

• s3 Criminal Law Act 1967: prevention of crime. ([Smith and Hogan]: ‘public defence’).

• s76 Criminal Justice and Immigration Act 2008 (CJIA): re-enacts common law principles.

- When can self-defence be used?

• 1. protection from physical attack (or threat of imminent attack) of self or another.

  • inc. another: R v Gladstone Williams [1984].

  • NOT protection of peace of mind: R v Bullerton [1992].

• 2. protection of property: R v Hussey [1925].

  - 2-part test for self-defence: R v Owino [1996].

• 1. trigger: d. honestly believes use of force was necessary.

• 2. response: level of force used to repel attack was reasonable in circs. d. believed to exist.

- Burden on prosecution: once raised by d., must be disproved.

- All or nothing defence: R v Clegg [1995].

• if successful: complete defence against all crimes.

• no partial defence possible: slightest failing defence fails – e.g. if d. uses slightly excessive force.

1. Trigger: d. honestly believed the use of force was necessary (subjective test).

- Subjective test: d. judged on facts as he believed them, whether reasonable or not.

• even if mistaken:

  • R v Gladstone Williams: d. attacked youth who was trying to stop a robbery, thinking robber being attacked CoA: self-defence – reasonableness only material to whether d. honestly believed force was necessary.

  • s76(3) + s76(4)(b)(i) CJIA: statutory footing.

• but NOT mistake induced by voluntary intoxication: R v O’Connor [1991]; s76(5) CJIA.

- Anticipatory self-defence (pre-emptive strike): allowed if threat imminent.

• Devlin v Armstrong [1971]: [MacDermott LJ]: ‘to ward off/prevent an attack he honestly anticipated … must be imminent’.

• A-G’s Ref (No.2 of 1983) [1984]: [Ld Lane CJ]: ‘against imminent apprehended attack’.

• Beckford v R [1988]: [Ld Griffiths]: ‘circs. may justify a pre-emptive strike’.

- No duty to retreat: d. can fight instead of run away – R v Bird [1985]: [Ld Diplock].

- Self-defence by antagonist/aggressor: allowed in some circs.

• R v Forrester [1992]: F. trespassing on W’s property, W. rushed at him CoA: self defence valid if W. used excessive force in attempting to remove him.

• R v Rashford [2005]: CoA: dep. on circs – if person d. attacks not only defends self but goes on offensive.

  2. Response: level of force used was reasonable (objective test).

  - Objective test: but judged on facts as d. subjectively believed them – R v Owino [1996]; s76(6) CJIA.

  - D. acting in ‘heat of the moment’ – taken into account.

• Palmer v R [1971, PC]: [Ld Morris]: if jury believe ‘in a moment of unexpected anguish’ d. did only what he ‘honestly and instinctively thought was necessary’.

• A-G’s Ref. for N. Ireland (No. 1 of 1975) [1977]: [Ld Diplock]: ‘in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed’.

• s76(7) CJIA: restates Palmer v R principle.

  Infancy

• children under 10: conclusive presumption not capable of guilt – doli incapax.

  • s16 Children and Young Persons Act 1963.

• children above 10: liability judged as adults – AR + MR (but different sentencing)

  • s34 Crime and Disorder Act 1998: previous rebuttable presumption abolished.

  • R v T [2008]: CoA: doli incapax defence never applies to children over 10.

Duress by Threat

- Duress by threat: d. commits criminal act as result of threat criminal conduct excused.

• true defence: deal with after considering elements of offence.

• R v Graham [1982; CoA]: defence first defined.

• courts restrictive: otherwise v. wide defence + difficult to disprove.

- Requirements: R v Hasan [2005; HoL]: [Ld Bingham]:

• 1. threat of death or serious injury.

• 2. against d., d’s immediate family, or someone for whom d. reasonably felt responsible.

• 3. objective test: (a) d’s belief in threat reasonable; (b) d’s response reasonable.

• 4. criminal offence directly caused by threats.

• 5. no evasive action d. could reasonably have been expected to take.

• 6. d. cannot rely on duress to which he has voluntarily laid himself open.

- Murder: defence of duress NOT available.

• not for principal offender – Abbott v R [1977; PC]; R v Howe & Others [1987; HoL].

• not for accessory – R v Howe & Others.

• not for attempted murder – R v Gotts [1992; HoL].

- Burden on prosecution: once raised by d., must be disproved.

Elements of Duress

- 1. threat to cause death or serious personal injury.

• not against property – M’Growther [1746]; DPP for NI v Lynch [1975].

- 2. threat directed against d., immediate family, or someone for whom d. feels reasonably responsible.

• can be stranger – R v Shayler [2001]: e.g. threat to detonate bomb.

- 3. threat + response judged objectively.

• (a) belief in threat must be reasonable (as well as genuine) – R v Graham; R v Hasan.

  • R v Graham: ‘good cause to fear’ (i.e. reasonable belief that threat would be carried out).

  • (R v Martin [2000]: CoA suggested honestly held unreasonable belief sufficient but effectively overruled by Hasan).

  • mistake: must be reasonable (unlike self-defence).

• (b) would sober, reasonable person sharing d’s characteristics have responded as d. did?

  • d’s characteristics taken into account – R v Bowen [1977].

    • physical characteristics: age, sex, infirmities (e.g. brittle bones, haemophilia).

    • recognised psychological conditions.

    • NOT low IQ.

  • proportionality of response to threat: Abbott v R [1977]: [Ld Wilberforce]: ‘the more dreadful the circumstances … the heavier the evidential burden of an accused’.

- 4. criminal offence directly caused by threats relied upon (‘nexus’ between threat + crime).

• d. must be required by threat to commit specific crime charged – R v Cole [1994]: [S-Brown LJ].

  • facts: d. robbed 2 building societies because threatened by money lenders CoA: no defence.

  • if not: poss. plea of duress of circumstances (but: problem of immediacy) – see below.

• multiple/cumulative causes: defence available if d. would not have acted but for threat of death/serious injury – R v Valderrama-Vega [1985; CoA].

  • facts: d. imported cocaine because of death threats + debts + threat to reveal homosexuality.

- 5. no evasive action d. could reasonably have been expected to take.

• no opportunity to avoid consequences: e.g. by going to police.

  • threat must be a present threat – R v Hudson & Taylor [1971; CoA]: [Ld Widgery]: ‘in the sense that it is effective to neutralise the will of the accused at the time’.

  • but: failure to take opportunity does not always prevent defence.

    • R v Hudson & Taylor: 2 girls gave false ev. in court because of threat of serious harm, 1 of gang present in gallery CoA: defence of duress available to perjury charge.

      • factors: d’s age, circumstances, risks of evasive action.

      • [Ld Widgery]: ‘no less compelling because their execution could not be effected in the courtroom, if they could be carried out in the streets the same night’.

    • cf. R v Abdul-Hussain [1999]: may be sufficient if threat imminent but not immediate.

    • but difficult: Hudson & Taylor criticised as ‘indulgent’ by [Ld Bingham] (in Hasan).

• d. must reasonably expect threat to be carried out (almost) immediately – R v Hasan: [Ld Bingham].

- 6. d. may not rely on duress to which he has voluntarily laid himself open (esp. joining violent gang).

• gangs: no defence if d. should have foreseen possibility of violent threats.

  • R v Sharp [1987]: d. joined gang of robbers, knew they used firearms, participated in robbery claiming another robber threatened to kill him CoA: no defence.

    • [Ld Lane CJ]: no defence where d. voluntarily + with knowledge of its nature joins gang which he knew might bring pressure on him to commit an offence.

  • R v Shepherd [1987]: d. in gang of shoplifters/burglars, wanted to leave but threatened with violence to self + family CoA: defence available.

    • [Mustill CJ]: defence when d. joins criminal enterprise and has no knowledge of their propensity for violence, but is then threatened with violence.

• objective test – R v Hasan: [Ld Bingham]: no defence if d. foresaw or ought reasonably to have foreseen risk of being subjected to any compulsion by threats of violence.

  • compulsion to commit crime not needed: any compulsion enough.

• not just criminal associations: R v Ali (Israr) [2008]: [Dyson LJ]: foreseeability of violence relevant, not nature of activity.

Necessity

- Necessity: lesser of 2 evils – d. acts because failure to act would result in greater danger.

• danger: threat or some outside factor.

- Original rule: necessity is NOT a defence.

• R v Dudley & Stephens [1884]: shipwreck survivors killed other weaker survivor to eat no defence to murder – [Ld Coleridge CJ]: ‘who is to be the judge?’

• LB Southwark v Williams [1971]: no defence for homeless person trespassing on unoccupied housing.

  • [Ld Denning]: ‘Necessity could open a door which no man could shut. So the courts must, for the sake of law and order, take a firm stand’.

• Buckoke v GLC [1971]: no defence for fire engine driver running red light.

  • [Ld Denning]: mitigation, not acquittal.

- Limited exceptions: common law + statutory provisions.

• Mouse’s Case [1608]: jettisoning cargo to save passengers on ship.

• s5(2)(b) Criminal Damage Act 1971.

• Reg 33 Traffic Signs Regulations and General Directions 1994 (S1 No. 1519): specific defence for emergency service drivers jumping red lights (cf. Buckoke v GLC).

• Re A (Minors) Conjoined Twins [2000; CoA]: 1 conjoined twin killed to save the other potentially, necessity...