Criminal Law - General Defences Flashcards
Duress
1) Duress by threats
= D forced to commit a crime because they’ve been threatened by death / serious injury
- Available for all crimes (Hudson and Taylor) other than:
- Murder (R v Howe) (not even if rlly young - R v Wilson)
- Attempted murder (R v Gotts)
- Some forms of treason (R v Steane)
The threat must:
1) Be of death / serious injury
2) Be directed towards the D / reasonably responsible = Shaylor
3) Subjective + objective tests
4) Must be to commit a specific offence (Cole – threats only to repay money not specifically to rob banks)
5) Not self-induced
6) No safe avenue of escape
7) Threat must be imminent
1) Be of death / serious injury
– Hudson and Taylor
– Valderrama-Vega (cumulative threats can be considered - death threats to import cocaine)
– Safi
2) Be directed towards the D / reasonably responsible - D, partner or immediate family
– Wife and child sufficient = Ortiz
– Boyfriend sufficient = Wright
3) Subjective + objective tests
– Laid down in R v Graham
– Confirmed in R v Howe, R v Hasan and Z
[1] Was the defendant compelled to act as he did because he feared death / serious injury? (subjective)
– R v Martin = CoA ruled jury could take any characteristics into account which may make more likely to believe threats
– But R v Hasan (formerly Z) confirmed Graham decision that D’s belief in threats must be reasonable + genuine
[2] Would a sober person of reasonable firmness, sharing the characteristics have responded in the same way? (objective)
- e.g: age, pregnancy, physical disability
(refer back for point 4)
5) Not self-induced
- If D knew the gang were likely to commit crime the defence will not be available = R v Sharp, Fitzpatrick
– Shepherd = D allowed to rely on duress despite the fact that it was self induced
– R v Hasan = defence of duress is excluded where D voluntarily associates with others who are engaged in criminal activity and he foresaw or ought to have reasonably foreseen the risk of being subjected to any compulsion by threats of violence
- If D becomes vol. intoxicated and mistakenly believes he is being threatened - cannot use defence. However if there is no mistake and the intoxication is irrelevant to duress D can use defence
6) No safe avenue of escape
- Gill = D claimed him and his wife had been threatened if he did not steal a lorry. However there was a sufficient period of time in which he was left alone and could have raised the alarm
- If police protection is possible then the D cannot rely on duress. However in the case of Hudson and Taylor it was accepted that police protection might not always be effective
- However, decision in Hudson criticised in Hasan
7) Threat must be imminent
(but doesn’t mean they need to be carried out immediately)
- Hudson and Taylor (1971) judge ruled that the defence of duress was not available as the threat could not be immediately put into effect. CA however found the girls not guilty as the they said that the defence can be used when the threat was hanging over the D at the time of committing the crime
- Abdual-Hussain (1999) further supported this and ruled that:
1) There must be imminent peril of death or serious injury to D or those for whom he is reasonably responsible.
2) Peril must operate on D’s mind at time of committing offence so as to overbear his will; a matter for the jury.
3) Execution of the threat need not be immediately in prospect
- But arguably overruled by Hasan = threat must be ‘immediate or almost immediate’
2) Duress by circumstances
= when a D is forced to act because of surrounding circumstances
– R v Willer (car surrounded by group of youths who threatened them - drove on pavement - allowed duress) - 1st time it was recognised
– R v Conway (passenger of D’s car thought threats were directed at him)
– R v Martin (wife threatened suicide unless he drove, even tho he was disqualified - put forward same 2 stage test in Graham:
1) Was D compelled to act as he did because he reasonably believed he had good cause to fear death / serious injury?
2) Would a sober person of reasonable firmness, sharing the same characteristics, have responded in the same way?
– R v Pommell = duress by circumstances available for all crimes except murder, attempted murder + treason
– R v Cairns = D reasonably perceiving a threat of physical injury / death enough, don’t have to prove there was an actual threat
Evaluation:
✗ Unavailability for murder
✗ Age of D ignored in R v Wilson
✗ No allowance for low IQ = R v Bowen
✗ Police protection = R v Hudson and Taylor = police protection couldn’t be completely fool-proof
Necessity
= where circumstances force a person to act in order to prevent a worse evil from occuring
- Courts been reluctant to recognise necessity in its own right –> R v Dudley and Stevens
- Has been recognised by courts in certain civil cases –> Re F (mental patient: sterilisation) (ruled it was lawful to sterilise a girl who had a severe mental disability)
– Re A (Conjoined Twins) = 4 principles of necessity:
1) Done only to avoid consequences that couldn’t be avoided
2) Those consequences would have inflicted inevitable evil
3) No more was done than reasonably necessary
4) Evil inflicted by it was not disproportionate to the evil avoided
– R v Shayler = CoA, test for duress of circumstances and/or necessity:
- Act must be done only to prevent an act of greater evil
- Evil must be directed towards the D / a person they’re reasonably responsible for
- Act must be reasonable + proportionate to evil avoided
Evaluation:
– Buckoke v Greater London Council - Lord Denning thought defence of necessity should be allowed for emergency service drivers if they broke traffic laws, but no defence for necessity in emergency situations
Insanity (+automatism)
- Special, full defence - ‘not guilty by reason of insanity’
- OPP v H = not a defence for strict liability (offences with no MR)
Leading case = M’Naghten:
1) Defect of reason
2) Result of the disease of the mind
3) Not knowing the nature and quality of the act
1) Defect of reason
- Power of reasoning must be impaired
– R v Clark = absent-mindedness not enough
2) Disease of the mind
- Physical / mental - but must affect the mind
– R v Kemp = hardening of arteries - blackouts - attacked wife with hammer - orig. ruled not disease of mind as it was physical - overturned - affected mind
– R v Sullivan = epilepsy - attacked 80 y/o during one of his fits - didn’t matter if it was ‘permanent or transient’, source doesn’t matter - can be organic or functional
– R v Hennessy = hyperglycaemic - taking a motor vehicle + driving while disqualified - internal - insanity
– R v Burgess =D + gf fell asleep watching videos - attacked her in sleep - internal cause - sleeping disorder
– R v Quick = hypoglycaemic state - external - automatism
– R v Coley = can’t use voluntarily intoxication for insanity - external factor
3) Not knowing the nature and quality of the act
- in a state of unconsciousness / impaired consciousness
- conscious but due to their mental condition doesn’t understand / know what they’re doing
– R v Oye = broke female officer’s jaw - demons - judge directed not guilty - jury guilty - overturned
- (can still use defence is they understood nature+quality but not it was legally wrong)
– R v Windle = 100 aspirins to wife - knew it was legally wrong - ‘i suppose they’ll hang me for this’ - couldn’t use insanity - guilty of murder
– R v Johnson = D stabbed neighbour - schizophrenia + hallucinations - psychiatrists said he knew nature + quality of act & it was morally wrong - continued definition of wrong as ‘contrary to law’
- Criminal Procedure (Insanity and Unfitness to Plead) Act 1991:
- hospital order (with / without restrictions)
- supervision order
- absolute discharge
- If murder, MUST impose indefinite hospital order
Evaluation of insanity
1) The M’Naghten rules
Established in 1843 outdated
Mental disorders limited (e.g. psychopaths
(Bryne) and irresistible impulses not included, know what they’re doing)
Legal definition not a medical one
Those suffering from physical diseases like diabetes (Hennessy), hardening of the arteries (Kemp) or even sleepwalkers (Burgess) could be classed as insane
2) Internal v external, overlap with automatism
Defence of non-insane automatism removed for people with diabetes / epilepsy
- Automatism = full acquittal
- Insanity = some order must be imposed (if full acquittal some people need treatment or supervision)
- Hennessy and Quick - silly distinction
3) Decision in Windle
- Legally wrong, not morally wrong
- Australian case refused to follow
- Johnson = recognised merit of Australian case but were obliged to follow Windle
4) Social stigma
- Social stigma
- Bad enough for mental disorders, but for physical diseases even worse
- Some ppl pre 1991 esp preferred to be guilty over not guilty by reason of insanity because of social stigma
— 2013: Law Commission - Criminal Liability: Insanity and Automatism = should replace insanity with a new defence of ‘not criminally responsible by reason of a medical condition’
- Remove social stigma, people with physical diseases etc.
- No action has yet been taken
5) Proof of insanity + role of the jury
- Have to prove they’re insane on the balance of probabilities — could breach Article 6 = ‘innocent until proven guilty’
- Inappropriate for the jury to be deciding insanity when it’s a medical decision that should arguably be made by medical experts
- Have no medical knowledge
- Could be confused over medical evidence
- Could also be so revolted they refuse to find them not guilty by reason of insanity
— Yorkshire Ripper (1981) - Peter Sutcliff suffering from paranoid schizophrenia - wanted to plead diminished responsibility- found him guilty of murder
— Oye = found guilty regardless of his medical state (CoA overturned)
6) Overlap with diminished responsibility
- Since 1957 there’s been an alternative for offences of murder (DR ONLY MURDER!!!!!!!!)
- DR covers wider range of medical conditions
- About 20 cases a year that use DR, about 1 or 2 that use insanity
Proposals for reform:
— Royal Commission on Capital Punishment (1953) = M’Naghten Rules should be extended so D would be considered insane if they were ‘incapable of preventing himself’ from committing the offence
- Psychopaths and irresistible impulses would be included
- But instead of that DR was introduced
- Butler Committee (1975) = not guilty by reason of insanity should be replaced by not guilty on evidence of mental disorder
- Law Commission’s Draft Criminal Code (1989) = D should not be guilty on evidence of severe mental disorder / severe mental handicap
- None of the proposals have ever been made into law
- But the different options to a judge introduced in 1991 have improved matters
— 2013: Law Commission - Criminal Liability: Insanity and Automatism = proposes a new defence of ‘not criminally responsible by reason of a medical condition’
Automatism
— Bratty v AG for Northern Ireland - definition:
“An act done by the muscles without any control by the mind, such as a spasm, reflex action, or a convulsion; or an act done by a person who is not conscious of what they’re doing such as an act done whilst suffering from concussion or whilst sleepwalking”
1) Insane automatism
- Where the cause is a disease of the mind (M’Naghten rules)
- Defence is insanity and verdict is not guilty by reason of insanity e.g. sleepwalking
2) Non-insane automatism
- External cause
- Complete defence - not guilty
- AR not voluntary
- No MR
- External e.g.: blow to the head, attack by a swarm of bees, sneezing, hypnotism, effect of a drug
— Hill v Baxter = no fault when D was in an automatic state through an external cause (D drove through stop sign and collided with another car-court accepted he remembered nothing from some time before reaching the stop sign
— Kay v Butterworth = D should not be made liable who, through no fault of his own, becomes unconscious while driving as, for example, a person who has been struck by a scribe or overcome by a sudden illness, or when a car has been put temporarily out of his control owing to his being attacked by a swarm of bees”
— R v T = exceptional stress can be an external factor that can lead to automatism (raped-PTSD-robbery)
— AG’s Reference (No.2 of 1992)(1993) = ‘tots, destruction of voluntary control’ (lorry driver-hard shoulder-trancelike state-CoA-only partial-not automatism)
Self-induced automatism
= where D knows their conduct is likely to bring on an automatic state
(e.g. diabetic who knows risk of failing to eat after insulin if drinking while taking medication)
— R v Bailey = diabetic who failed to eat enough after taking insulin - aggressive and hit someone over the head with an iron bar- orig ruled automatism not available, CoA ruled that was wrong but there was still insufficient evidence to raise it
- Two types: specific intent offences & basic intent offences
[I] Specific intent offences
- If offence is one of specific intent, self-induced automatism can be raised
- Because lack MR for offence
- MR = specific intent
- Only available to offences with the MR of intent only e.g. murder or s.18 OAPA (1861)
[II] Basic intent offences
- Main rule = cannot use defence of automatism if they’ve brought about the automatic state by being reckless
— Bailey states:
1) Can’t use self-induced automatism if D has been reckless in getting into a state of automatism
Subjective recklessness is sufficient for the MR of crimes of basic intent
2) Where self-induced automatic state is caused through drink / illegal drugs / any other intoxication substance can use defence
— DPP v Majewski - becoming voluntarily intoxicated was a reckless course of conduct
3) Where D doesn’t know their actions are likely to lead to a self-induced automatic state in which they commit an offence, they have not been reckless and can use defence of automatism
- Offences where recklessness is sufficient for MR e.g. assault, battery, ss.47 and ss.20 OAPA (1861) and manslaughter
— Coley - D had been taking cannabis led him to attack neighbour - automatism not available to D who’s induced an acute state of voluntary behaviour by his own fault
— R v Hardie = D depressed about his former girlfriend leaving and took Valium - set fire to the wardrobe - CoA quashed conviction because he took the Valium to calm himself down (normal effect of Valium) and hasn’t been reckless and automatism should’ve been left to the jury
Evaluation of Automatism
- Dispute over whether it’s a denial of AR or MR - Law Commission suggests correct classification is a denial of AR - could be, in theory, used for strict liability, but not case at present
- Insanity - subject to some sort of order but non-automatism full acquittal - may be some ppl who need help who get full acquittal and others who don’t who do
(e.g someone who crashed a vehicle suffering from undiagnosed sleep apnoea could succeed in autom - court can’t order medical treatment - Distinction between insane + non-insane automatism arbitrary –> diabetic who lapses into a hypoglycaemic state = automatism, hyperglycaemic state = insanity
- R v Burgess = sleepwalking is insane automatism - grouped as ‘disease of the mind’ - Lord Chief Justice Lane = “if there’s a danger of recurrence” counts as “disease of the mind”
- But not applied to every case - R v Bilton - acquitted of rape - jury accepted claim sleepwalking at time
- Def have to prove it on balance on prob vol intox. –> R v Lowe = attacked dad while vol intox. - used insane-automatism - argued happened while sleepwalking / confused state of arousal
- R v Pooley = acquitted of rape - sleepwalking - despite his own vol intox.
Proposals for reform:
- Draft Criminal Code (1989) suggested not guilty of offence if:
a) acts in state of autom. + his act is:
(i) a reflex, spasm or convulsion or
(ii} occurs while he’s in a condition depriving him of effective control of his act, and
b) result neither of anything done / omitted with the fault required for the offence for the vol intox.
- Would include acts in a epileptic convulsion (e.g. Sullivan) - could use non-insane instead of insanity + Burgess
- But present law allows them to order treatment - if full acquittal - pot. leaves a dangerous person do the same thing again
- Law Commission (2013) - ‘Criminal Liability: Insanity and Automatism - they had pointed out earlier than the 2 defences so closely linked that if there’s to be reform of insanity must be reform of autom. - paper sets out problems with the current law
- Recommends that where their loss of capacity to control their actions is due to something they did / failed to do - liability will still turn on the principles of prior fault - in this respect not actually proposing any changes to the law
Intoxication (do!)
- Intoxication can come about by alcohol / other substances (e.g. glue-sniffing)
- Dowds = rules on intoxication apply to all defences + to intoxication caused by drugs or other substances as well as alcohol
- It’s not rlly a defence but whether they were able to form the MR
1) Voluntary intoxication
= chosen to take an intoxicating substance
Specific intent offences:
- Can negate MR for a specific intent offence
- If they’ve not formed the MR they’re not guilty = DPP v Beard –>murder - intoxicated - Lord Birkenhead = if they were so drunk they couldn’t form the MR he won’t be convicted of a crime
– R v Sheehman and Moore = drunk + poured petrol over a tramp and killed him - too drunk to form intent to kill / GBH (but manslaughter [basic intent] - usually fall-back offence but not always)
– AG for Northern Ireland v Gallagher = D bought knife to kill wife - got drunk ‘dutch courage’ - not allowed
– R v Coley = despite taking cannabis he formed intent to kill neighbours
Basic intent offences:
- Basic intent = can’t use it
- because getting vol intox. is reckless, and recklessness is enough for MR
–DPP v Majewski = drunk - charged with assault, ABH + crim damage
2) Past intoxication
= D suffering from a mental disorder brought on by past vol. intox - can use defence
– R v Harris = alcohol psychosis caused him to hear voices telling him to burn the house down - not intox at time but allowed past vol intox
3) Involuntary intoxication
= substances where D didn’t know they were taking an intoxicating substance
- Test = did D have necessary MR? if they did they’re guilty –> R v Kingston (ruled if D had MR for incident assault before his coffee was drugged, still guilty)
- Where there’s no MR - not guilty of either a specific or basic intent offence (not reckless) –> R v Hardie (took valium)
4) Intoxicated by mistake
= If they’re mistaken about a key fact because they’re intoxicated, it depends on what the mistake was about whether they have a defence
- Where the mistake is something which means the D didn’t have the necc MR for specific intent offences they have a defence
- If it’s basic-intent - no defence
– R v Lipman = D and girlfriend took LSD which causes hallucinations - woke up and realised he had killed the girlfriend, as he thought she was a snake attacking him - didn’t have specific intent for murder but guilty of mans as was reckless in taking the LSD
Self-defence
- Covers actions which are needed to defend oneself from an attack, but also actions taken to defend another person
-
s.3(1) Criminal Law Act (1967) = can use ‘prevention of crime’
– **Criminal Justice and Immigration Act (CJIA) (2008) = sets out what is ‘reasonable force’
Degree of force:
– s.76 CJIA 2008 - what someone honestly + instinctively thought was necessary –> subjective
- Allows for a person who’s under stress and unable to calculate exact of force required to use the defence
- But if all danger is over, can’t use it
– R v Hussain = D inflicted injuries on someone who broke into his home after they had ran out of the house - couldn’t
Householder defence:
– Crime and Courts Act (2013) = s.43 amended s.76 CJIA 2008 –> gives wider defence to householders
– s.76(5A) = not reasonable if ‘grossly disproportionate’ (normal - ‘disproportionate’)
- To be a householder case:
[I] Force must be used by D while in / partly in a building that’s a dwelling
[II] D must not be a trespasser
[III] D must have believed V to be a trespasser
- Allows for buildings with dual purpose (shopkeeper but family in shop - not for customers in the shop)
– Collins v Secretary of State for Justice (2016) = s.76(SA) –> argued defence violated breach of right to life - ruled it didn’t - had to be reasonable in the circumstances as he believed them to be
Mistaken use of force in self defence:
- Look at facts as they genuinely believed them to be
- If they have a mistaken view of the facts, regardless whether it’s reasonable or unreasonable, can use it
– R v Gladstone and Williams = D thought man was assaulting a youth - police officer - judge D according to his genuine mistaken view of the facts
– s.76 CJIA 2008 - puts decision in Gladstone Williams on statutory footing
- Question whether D genuinely hold that mistaken belief
- Even if mistake is unreasonable, can still rely on defence
Drunken mistake:
- s.76(5) - D can’t rely on any mistaken belief if it’s due to being vol. intox.
- Personality disorder which affects D’s perceptions of the situation can’t be taken into account
- Force must not be excessive
Evaluation of self-defence
1) Is force necessary?
- Question for jury
- Does a victim have to retreat before using force? - R v Bird - ruled no requirement to show an unwillingness to retreat
– s.76(6A) CJIA 2008 = not under a duty to retreat when acting for a legitimate purpose
- But possibility D could’ve retreated is a relevant factor when considering whether the degree of force was necessary
– s.76 CJIA 2008 = as long as mistake not due to intoxication, can rely on their mistake
- s.76(SA) = must be ‘grossly disproportionate’ for householder cases - supports view they have a moral right to defend themselves, higher than before 2008
2) Defence too generous to the defendant
- Available even when mistake was unreasonable
- If it wasn’t allowed, they’d go to prison when they weren’t really at fault
- But also need to protect innocent victim whom D has assaulted due to a mistaken belief
3) Pre-emptive strike
- Do D’s have to wait until they’re attacked before using force?
- Law clear they can act to prevent force
- Would be ridiculous to wait until stabbed to do something
– Attorney-General’s Reference (No.2 of 1983) = someone who fears an attack can make preparations to defend themselves, even if preparations involve breaches of law
4) Excessive force
- Can be said to be morally right to use force to defend yourself or property
- Arguably should apply whether it’s inside or outside the house
- But limits have to be set on what force can be used to prevent people from taking the law into their own hands
- If limits are exceeded, self-defence can’t be used
- However, level of fault can be taken into account when passing the sentence
- This can be particularly unfair when D kills someone else in self-defence, if convicted must be given a mandatory life sentence
- But level of fault can be reflected in tariff period –> R v Clegg (soldier-shot civilian in car-no danger as car had gone past him) and R v Martin (Anthony) (shot burglar in back - personality disorder not taken into account)
- Critics say it’s an ‘all or nothing’ defence - argues it should be a partial defence where use of self-defence justified, but used excessive force
5) Relevance of D’s characteristics
– R v Martin (Anthony) = psychiatric evidence that D had condition that meant he perceived much greater danger not relevant to whether force used was reasonable
– R v Cairns = followed dec. in R v Martin - not appropriate to take into account whether they were suffering from a psychiatric condition
– R v Oye = ruled law in Martin and Cairns still applied
– Criminal Justice and Immigration Act (2008) = passed to clarify law - but hasn’t altered that point
– Crime and Courts Act (2013) = wider definition to householders - ‘grossly disproportionate’ (Martin still wouldn’t have been able to use tho)
