#3593 - General Defences - Criminal Law

Excuse v justification – (note – we do not use these terms in day to day law. It is unclear which defences are excuses and which justifications so the courts tend to refrain from using them)conceptually, defences can be categorised as either justifications or excuses. The way Robinson puts it: actors are excused, while acts are justified.

• Excuse – the conduct is wrong but the availability of a defence acknowledges human frailty. Generally denies MR – tries to show D was not the actor in control of his act.

• Justification – given the circumstances, D did the right thing. Justifications exculpate the actor. Justification generally accepts that MR existed.

  • Horder explains: when raising an excuse, D says that he could not reasonably have acted differently, but accepts some sort of moral control over the situation. Justification denies that moral control.

Why do we recognise this distinction?

• Primarily of theoretical interest, but there are some instances where the distinction can be seen to have practical relevance:

  • It is legally acceptable to use force against excused behaviour, but not justified behaviour.

  • Justificatory defences are offered to strict liability offences, while excusatory ones are not.

  • If D puts himself in a position of deciding between two evils, he will be able to raise a justification but not an excuse.

Debate: what is D doesn’t know his behaviour is justified? (e.g. his victim is a felon but he doesn’t know that)

• Dadson – D is not justified

• Robinson – D is justified

PUBLIC/PRIVATE DEFENCE

• Commonly known as self-defence, but also encompasses prevention of crime and protection of property.

  • Self-defence (including the protection of others) is laid down in the common law by Duffy.

  • Prevention of crime is governed by Criminal Law Act 1967 (clarified in Criminal Justice & Immigration Act 2008, s.76).

  • Protection of property is government by Criminal Damage Act 1971.

Requirements:

1. D must apprehend a present or imminent attack/unjustified threat.

2. The use of force must be necessary and proportionate.

   • Martin – D had been burgled several times. This time he shot 2 burglars, killing one. The jury had to decide whether his use of force had been necessary and proportionate/reasonable. They were directed the treat necessity objectively, and reasonableness objectively. In order to convict, the jury had to show either that: D was not acting in self defence (because of the nature of the threat), or that he was acting unreasonably in his use of force. D successfully pled diminished responsibility (which he had tried to argue to justify necessity, but the objective nature of the test did not allow it).

Unjustified threat:

• Must be to life or bodily integrity, personal liberty, or property.

• The perceived threat must constitute an offence under English law (Jones). Note there are some exceptions to this. In Re A it is pointed out that you may kill a 6 year old on a shooting spree, despite him doli incapax and therefore his conduct not being criminal.

• The threat must be imminent, but it is acceptable for D to strike to the first blow – he doesn’t have to wait until he is being attacked (Beckford – D police officer shot dead a suspect he thought was dangerous.)

• The threat/facts are judged as D perceived them (in Beckford D thought V was armed. Gladstone Williams – D thought he was apprehending a mugger, when in fact V was carrying out a citizen’s arrest. He was acquitted.)

Necessary:

• We judge the facts as D perceives them (see above)

• Any concept of necessity ends when the attack has finished. The defence will be lost if D attacks once the threat/attack on him has ended (Palmer).

• Note that there is no duty to retreat i.e. run away from danger if possible (Bird), but it may be a factor for consideration (Duffy).

Reasonableness:

• Question: on the situation as D perceived it, was the force used reasonable/proportionate. Excessive force results in the defence being withdrawn (Clegg).

• The law recognises that in stressful situations D may act disproportionately (Palmer) e.g. it may be proportionate to kill in order to defence oneself from rape.

• The Law Commission suggested a separate offence of excessive force in exercising self defence, but this was rejected – lines would be too difficult to draw and it may be overused as a means of compromise by juries.

• McColgan has criticised the defence as being inherently ‘male’ – focussing on one-on-one violence.

DURESS

• The defence is a ‘concession to human frailty’. It is an excuse.

• IMPORTANT NOTE: duress is not a defence to murder. In that situation, the law expects people to act heroically and sacrifice their own life before killing someone else (Howe).

• Divided into two categories: duress of circumstance, and duress by threat. The requirements for them are the same.

  • By threat: Do X or I will kill you

  • Of circumstance: No specific threat, but D believes failure to act as he does (illegally) will result in serious harm or death.

• Leading case on duress is Graham, as clarified in Hasan. They effectively lay down 3 conditions to the availability of the defence:

  • D must reasonably believe in the existence of a threat to life or of serious injury (a threat of false imprisonment may also suffice)

  • The threat must be directed towards D, his family, or someone D might reasonably regard himself as responsible for.

  • A ‘sober person of reasonable firmness’ would have done what D did.

Reasonable belief in the threat:

• Note this is more stringent than self-defence, where an honest but unreasonable belief will allow the defence.

• The test is objective. Mistakes are allowed, but those mistakes must be reasonable. The threat does not actually have to exist (confirmed in Safi).

• DEBATE: is it necessary that the threat is capable of being carried out immediately?

  • Hudson and Taylor says no. D perjured himself because he was being threatened over his testimony. The judge said that it didn’t matter if the threat couldn’t be carried out in court, but the threats…’were no less compelling…if they could be carried out on the streets of Salford the same night”

  • This position was brought somewhat into question in Hasan – awaiting absolute clarification. Simester and Sullivan approve of the Hudson and Taylor decision.

Sober person of reasonable firmness:

• Rule laid down in Graham. Bowen elaborates: eggshell skull rule does not apply; certain factors such as age, sex, and physical or mental condition may allow relaxation in the objectivity of ‘reasonable’; characteristics due to self-inflicted abuse are excluded.

• Note that the threat must be a cause, but need not be the sole cause. We should consider it in the context of D’s circumstances (Valderama-Vega)

• Where D voluntarily exposes himself to the risk, the defence will not be available (Hasan – D knew that he was associating with dangerous people and he may be put in a dangerous situation.

  • Lord Bingham said this was important because the law should discourage association with criminals. Lady Hale was more sympathetic, citing examples of wives who associate with violent husbands.

The difficulty of duress of circumstance

• This defence is tricky. It is often closely associated with necessity, but it is recognised as different. Necessity is a lesser of two clear evils situation, whereas one of the evils in duress of circumstance is speculative.

  • Conway – D was charged with dangerous driving. He claimed a passenger had been shot and he feared another shot would follow. Duress defence succeeded.

Theoretical issues of duress:

• Huge debate over whether it should be a defence to murder. Lord Bingham said in Hasan that extending the defence was ‘irresistible’. In South Africa duress is a defence to murder – laid down in Goliath. The Law Commission has previously supported this extension.

• Stephens has argued that duress shouldn’t be a defence at all. He says: “it is at the moment when temptation to commit crime is strongest that the law should speak most clearly and emphatically to the contrary”

• Professor Smith identifies the ‘reasonable belief’ element as a tie to necessity – conceptually it is unclear what effect this has...