1.4 General Defences

Question 1

What are the 6 general defences?

Answer 1

1. Inadvertence and Mistake.
2. Duress
3. Duress of Circumstance
4. Defence of self, others or property
5. Police Officers
6. Infancy

Question 2

Explain the general defence of Inadvertence and Mistake?

Answer 2

There are occasions where a defendant makes a mistake about some circumstance or consequence; however, claims that a defendant ‘made a mistake’ or did something ‘inadvertently’ will only be an effective defence if they negate themens reafor that offence. Therefore, if someone wanders out of a shop with something that has not yet been paid for, that mistake or inadvertence might negative anymens reaof ‘dishonesty’.

Question 3

Explain the general defence of Duress?

Answer 3

Where a person is threatened with death or serious physical injury unless he/she carries out a criminal act, he/she may have a defence of duress (RvGraham[1982] 1 WLR 294). The threat of serious physical injury does not appear to include seriouspsychologicalinjury (RvBaker[1997] Crim LR 497). Where relevant intent is an ingredient of the offence, defendants might claim that they only formed that intent as a result of duress. However, unless it is shown that the intent had or could have been formedonlyby reason of that duress (e.g. the duress was the only thing causing the defendant to form that intent), the defence will fail (RvFisher[2004] EWCA Crim 1190).

Question 4

Can threats of death/serious harm to loved ones amount to a defence of duress?

Answer 4

Yes- It would seem that the threat need not be made solely to the person who goes on to commit the relevant offence; there are authorities to suggest that threats of death/serious harm to loved ones may allow a defence of duress.

Question 5

What are the several key elements to duress?

Answer 5

• the threat must have driven the defendant to commit the offence;
• the defendant must have acted as a sober and reasonable person sharing the defendant’s characteristics would have done;
• the threatened death/injury must be anticipated at or near the time of the offence—not some time in the distant future.

Question 6

When is duress not available as a defence?

Answer 6

Duress is not available as a defence if it is proved that the defendant failed to take advantage of an opportunity to neutralise the effects of the threat (perhaps by escaping from it), which a reasonable person of a similar sort to the defendant would have taken in the same position.

Question 7

If defendants knowingly expose themselves to a risk of such a threat of death or serious physical injury, they cannot claim duress as a defence. Provide examples?

Answer 7

So if a person joins a violent gang or an active terrorist organisation, he/she cannot claim duress as a defence to any crimes he/she may go on to commit under threat of death or serious injury from another memberor rival of that organisation (RvSharp[1987] QB 853). However, if the purpose of the organisation or gang is not predominantly violent or dangerous (e.g. a gang of shoplifters), the defence of duressmaybe available in relation to offences committed while under threat of death or serious physical injury from other gang members (RvShepherd(1987) 86 Cr App R 47).

Question 8

Explain the general defence of Duress of Circumstance?

Answer 8

There may be times when circumstances leave the defendant no alternative but to commit an offence. InRvMartin[1989] 1 All ER 652, the defendant had driven whilst disqualified from driving. He claimed he did so because his wife had threatened to commit suicide if he did not drive their son to work. His wife had attempted suicide on previous occasions and the son was late for work and she feared he would lose his job if her husband did not get him to work. The Court of Appeal stated that, in these circumstances, the defence of duress of circumstances wasavailableto the defendant.

Question 9

In determining whether or not the defence of ‘duress of circumstances’ was available, the court held that the jury must ask two questions in relation to the appellant?

Answer 9

• Was he (or might he have been) impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear he would suffer death or serious injury if he did not do so?
• If so, would a sober person of reasonable firmness and sharing the same characteristics have responded to the situation in the way that he did?

If each question were answered ‘yes’, the defence would be made out (R v Cairns [1999] 2 Cr App R 137).

Question 10

When is the offence of Duress of Circumstance not available?

Answer 10

The defence is not available in relation to offences of murder, attempted murder, treason and offences under the Misuse of Drugs Act 1971. The defence is available against any other charge (including hijacking (RvAbdul-Hussain[1999] Crim LR 570)).

Question 11

What does article 2 Human Rights state?

Answer 11

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
   (a) in defence of any person from unlawful violence;
   (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
   (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Question 12

When a life is taken under any of the three situations set out in Article 2 Human Rights the force used must be shown to have been?

Answer 12

No more than absolutely necessary (a more stringent test than the general test imposed in our domestic criminal law by s. 3 of the Criminal Law Act 1967 (as to which, see para. 1.4.5.3)). This test was examined by the European Commission on Human Rights in Stewart v United Kingdom (1985) 7 EHRR CD 453. There the Commission held that force will be absolutely necessary only if it is strictly proportionate to the legitimate purpose being pursued. In order to meet those criteria, regard must be had to:

• the nature of the aim being pursued;
• the inherent dangers to life and limb from the situation; and
• the degree of risk to life presented by the amount of force employed.

Question 13

What does Section 76 Criminal Justice and Immigration Act 2008 provide?

Answer 13

Section 76 provides a gloss on the common law of self-defence and the defences provided by s. 3(1) of the Criminal Law Act 1967, which relate to the use of force in the prevention of crime or making an arrest. Section 76 aims to improve understanding of the practical application of these areas of law using elements of case law toillustrate how the defence operates. It does not change the current test that allows the use of reasonable force.

Question 14

A person may use such force as is reasonable in the circumstances as he/she believes them to be for the purpose of?

‘Simple formula’

Answer 14

The law can be formulated quite simply along the following lines:

A person may use such force as is reasonable in the circumstances as he/she believes them to be for the purpose of:

(a) self-defence; or
(b) defence of another; or
(c) defence of property; or
(d) prevention of crime; or
(e) lawful arrest.

Question 15

What does Section 3 (1) The Criminal Law Act 1967 state?

Answer 15

A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Question 16

What does Section 76 (10) Criminal Justice and Immigration act state?

Answer 16

Section 76(10)(b) states that reasonable force in self-defence includes acting in the defence of another person.

Question 17

What does Section 76 (3) Criminal Justice and Immigration Act 2008 state?

Answer 17

The question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstancesas the defendant believed them to be

Question 18

What does Section 76 (5) Criminal Justice and Immigration Act state?

Answer 18

Would not enable someone to rely on any mistaken belief due to intoxication that was voluntarily induced.

Question 19

What does Section 76 (6) Criminal Justice and Immigration Act state?

Answer 19

Section 76(6) adds that the degree of force used by the defendant is not to be regarded as reasonable in the circumstances as the defendant believed them to be if it was disproportionate in those circumstances.

Question 20

What does Section 76 (7) Criminal Justice and Immigration Act 2008 state?

Answer 20

In deciding whether or not the degree of force used was reasonable in the circumstances, s. 76(7) requires certain considerations to be taken into account:

• that a person acting for a legitimate purpose (the purposes of the defences to which s. 76 applies) may not be able to weigh to a nicety the exact measure of any necessary action; and
• that evidence of a person having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

This does not prevent other matters from being taken into account where they are relevant in deciding whether the degree of force used was reasonable in the circumstances.

Question 21

How is Section 76 Criminal Justice and Immigration Act 2008 simply defined?

Answer 21

In the heat of the moment, he/she will not be expected to have judged exactly what action was called for, and a degree of latitude may be given to a person who only did what he/she honestly and instinctively thought was necessary.

Question 22

What does Section 43 of the Crime and Courts Act 2013 amend?

Answer 22

Section 43 of the Crime and Courts Act 2013 amends s. 76 of the Criminal Justice and Immigration Act 2008 so that the use ofdisproportionateforce can be regarded as reasonable in the circumstances as the accused believed them to be when householders are acting to protect themselves or others from trespassers in their homes (self-defence).

Question 23

Will Police Officers be criminally liable for any assaults they committ?

Answer 23

Yes- However, just as the same offences and sentences will apply, similarly the same general defences will potentially be available to the officer.

Question 24

Explain the general defence of infancy?

Answer 24

Children under the age of 10 areirrefutablypresumed to be incapable of criminal responsibility (doli incapax) by virtue of s. 50 of the Children and Young Persons Act 1933.