9. Necesity defences

Question 1

what is self defence/prevention of crime

Answer 1

common law defence of self defence and defence of another

complete defence (not guilty)

Question 2

what is self defence/prevention of crime charged under

Answer 2

s3 Criminal Law Act 1967
- Public defence (prevention of crime)

Question 3

definition for self defence/prevention of crime

Answer 3

CLA 1967 s3: “a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting of assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”

Question 4

two points to consider for self defence/prevention of crime

Answer 4

• necessity of force
• reasonableness of force

Question 5

explain ‘necessity of force’

Answer 5

whether force was necessary is a question for the jury

use of force is not justified led if it is not necessary in the circumstances or in the circumstances the D genuinely believed existed

• Gladstone Williams: defence is based on the Ds genuine belief rather than the actual facts (subjective)
• Bird: D doenst have to wait for an attack to start; can get in the first blow. D has no obligation to demonstrate unwillingness to fight
• AG’s Ref No2 of 1983: someone who fears an attack can make preparations to defend himself, even if the preparations involve breaches of the law
• D doesn’t have to retreat when acting for a legitimate purpose (but, it is a factor when considering whether degree of force was necessary)
• Hussain: if the attacker no longer poses a threat (eg unconscious, running away), it is unlikely force will be considered necessary

s76 Criminal Justice & Immigration Act 2008: D can rely on a a genuine belief of circumstances even if they were mistaken and unreasonable, but not if it was a drunken mistake.

Question 6

explain ‘reasonableness of force’

Answer 6

aka degree of force

jury decide if D (in all the circumstances) used reasonable force
- must balance facts as D sees them, the circumstances of the attack, time available to D to decide his action, and the risk to him against the rick of harm to V. if force is excessive it is still unlawful (Palmer)
- Martin, Cooke

Hussain: force will be excessive and unreasonable if V no longer poses a threat

s76 Criminal Justice & Immigration Act 2008: In determining the reasonableness of the force used, “evidence of a persons 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”

Question 7

principles for ‘reasonableness of force’ for householder cases

Answer 7

s76 Criminal Justice & Immigration Act 2008 as amended by the Crime and Courts Act 2013 gives a wider defence to householders when an intruder enters their property

normally, force is not reasonable if “disproportionate”.
- for householder cases, as long as the amount of force used is not “grossly disproportionate” the jury may consider it to be reasonable

must be that:
(1) force used by D was while in/partly in a building that is a dwelling
(2) D is not a trespasser
(3) D must have believed V to be a trespasser

Question 8

what are the necessity defences

Answer 8

• self defence/prevention of crime
• duress

Question 9

what is duress

Answer 9

duress is a defence which can be raised where D is forced to perform the criminal act by someone else

Question 10

types of duress

Answer 10

• duress by threats
• duress if circumstances

Question 11

define duress by threats

Answer 11

Graham set out the two stage test for duress by threat

(1) was D impelled to act as he did because he feared death or serious physical injury? (subjective)

(2) if so, did he respond as a sober person of reasonable firmness sharing the characteristics of the D would have done (objective)

Question 12

duress by threats: points to consider for the first stage of the test

Answer 12

(1) was D impelled to act as he did because he feared death or serious physical injury? (subjective)

• seriousness of the threat
• threat must be made in connection with the offence committed
• genuine belief and characteristics of D

Question 13

explain ‘seriousness of the threat’

Answer 13

the threats must be as to serious physical harm (even if the offence committed is minor)

Valderrama-Vega: only relevant factors are threats of death or serious injury to D of his immediate family
- threats can be cumulative
- financial pressure and disclosure of homosexuality irrelevant to defence

Hasan: defence can also be used where the threats are just with respect fi a person for whose safety D would reasonably regard himself responsible (eg, neighbour, friends, extended family)

there is no defence if the threat is to damage or destroy property

Question 14

explain ‘threat must be made in connection with the offence committed’

Answer 14

there must be connection between threats made to D and the offence committed in response to the threats (Cole)

(eg, directly telling D to commit a specific offence)

Question 15

explain ‘genuine belief and characteristics of D’

Answer 15

D must have committed the offence because of threats that D genuinely believed had been made
- this is subjective, but the belief must be reasonable

Martin: D must reasonably fear for his safety. Jury can take into account any special characteristics of D which may have made him more likely to believe the threats

Hasan: a genuine mistaken belief by D can be a defence, but the belief in the threats must be genuine and reasonable

Question 16

duress by threats: points to consider for the second stage of the test

Answer 16

(2) if so, did he respond as a sober person of reasonable firmness sharing the characteristics of the D would have done (objective)

• effects of the threats on the reasonable man sharing the characteristics of D
• possible safe avenue of escape
• imminence of threat

Question 17

explain ‘effects of the threats on the reasonable man sharing the characteristics of D’

Answer 17

Bowen: sets out what characteristics can be taken into account
- D must go to the ability to resist pressure and threats
- age (very young/old)
- pregnancy (additional fear for unborn child)
- serious physical disability (more difficult for D to defend himself)
- recognised mental illness or psychiatric disorder (eg PTSD, anxiety, paranoid schizophrenia, autism, learning disorder, but NOT a low IQ)
- gender (female may be more vulnerable/ likely to fear for safety)

Question 18

explain ‘possible safe avenue of escape’

Answer 18

defence is only available where D has ‘no safe avenue of escape’

Gill said that if police protection is available D cannot rely on duress
- but, Hudson & Taylor accepted that police protection might not always be effective; the jury should take into account the age and sex of D
- Hasan criticised Hudson & Taylor saying D shoukd seek police protection

Question 19

explain ‘imminence of threat’

Answer 19

the threat must be effective at the time the crime is committed but, this does not mean that the threats need to be able to be carried out immediately (Hudson & Taylor)

Abdul-Hussain: the threat need not be immediate but it had to be imminent in the sense that it was hanging over them

Question 20

principles of intoxication and duress

Answer 20

duress cant be used if D becomes voluntarily intoxicated and mistakenly believes he is being threatened - this would be unreasonable

if D becomes involuntarily intoxicated and is suffering under a mistaken belief that he has been threatened, he may be able to rely on this belief (even if unreasonable) if the belief (if genuine) would make the reasonable person do as the accused did

if there is no mistake and the intoxication is irrelevant to the duress, the defence can be used

Question 21

principles of self-induced duress

Answer 21

when D has brought the duress upon himself through his own actions, he can’t use the defence

for example:
- where D joins a criminal gang which he knows is likely to use violence (Sharp, Shepherd)
- where D puts himself in a position where he knows he is likely to be subjected to threats of violence or actual violence (eg being involved in criminal activity of indebted to a drug dealer) (Heath)
- where D realises or ought to have realised that he may be threatened with violence and compelled to commit a crime (Hasan)

Question 22

what is duress of circumstances

Answer 22

D is forced to act because of surroundings circumstances. D believes he, or those with him would suffer death or serious injury if he did not escape by doing what he did (Willer)

Question 23

points to prove for duress of circumstances

Answer 23

• reasonable and proportionate action
  
  • Conway: action that would only be taken given the serious nature of the threats made. the action must be reasonable and in proportion to the seriousness of the threat.
• Martin set out principles behinf duress of circumstances: Graham 2 stage test:
  (1) was D impelled to act as he did because he feared death or serious physical injury? (subjective)
  - seriousness of the threat
  - threat must be made in connection with the offence committed
  - genuine belief and characteristics of D
  (2) if so, did he respond as a sober person of reasonable firmness sharing the characteristics of the D would have done (objective)
  - effects of the threats on the reasonable man sharing the characteristics of D
  - possible safe avenue of escape
  - imminence of threat

Pommel: defence of duress of circumstances was extended to all crimes as in duress by threats