General Defences

Question 0

General defences-

Answer 0

D will usually have performed the actus reus with the appropriate mens rea, but despite both these elements of the offence being proved by the Crown - the Q is whether D is entitled to an acquittal owing to some justifying, exempting circumstance or condition.

Question 1

Force in self defence, prevention of crime and the preservation of the peace.

S3 criminal Law 1967

Answer 1

A person may use such force as is reasonable in the circumstances in the prevention of a crime, or in assisting lawful arrest of offenders etc.

Question 2

Children under 10.

Answer 2

Children and Young Persons Act 1963 s16 raised the age of criminal responsibility to the child’s 10th birthday.

• shall be conclusively presumed that no child under the age of 10 can be guilty of any offence.
• however this has been queried by the UN who have demanded reform of the English Law- however there is no international agreement on what the age should be.

Question 3

Children aged 10 and above

Answer 3

There was once a rebuttable presumption that a child over 10 but under 14 was doli incapax (incapable of committing crime).
-the presumption was only rebutted if the prosecution proved beyond reasonable doubt that, not only that the child had the actus reus and mens rea, but that he knew that the particular act was ‘seriously wrong’.

Following on from the Divisional Court ruling of C v DPP and the Crime and Disorder Act 1998 s34 Parliament abolished the rebuttable presumption.
-poorly drafted.

Question 4

Duress

Fisher 2004
Hasan 2005

Answer 4

House of Lords and Court of Appeal= duress is not a denial of means rea but a true defence operating despite the existence of the actus reus and mens rea of the offence.

Duress is a defence because ‘threats if immediate death or serious personal violence is so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal’. - A-G v Whelan

Question 5

Onus of Proof

Hasan 2005.

Answer 5

Onus of disproving duress of either kind is on the Crown.

Question 6

Elements of the Defence

Hasan 2005

Answer 6

Lord Bingham summarised the elements of the defence:

• there must be a threat of death or serious injury.
• that threat must have been made to D or his immediate family or someone close to him, or someone for whom D would reasonably regard himself as responsible.
• D’s perception of the threat and his conduct in response are to be assessed objectively- his belief that he is under such a threat must be reasonable and his decision to commit the crime in response must be reasonable.
• the conduct it is sought to excuse must have been directly caused by the threats D relies on.
• there must have been no evasive action D could reasonably take.
• D cannot rely on threats to which he has voluntarily laid himself open.
• the D is unavailable to murder, attempted murder or treason.

Question 7

Nature of the threat

-type of qualifying threat or danger.

Answer 7

Serious threat of death or serious injury.

• held that serious psychiatric injury can be GBH for the purposes of the Offences against the person and is probable that a threat to cause it could amount to duress as a defence.
• Baker v Williams

Question 8

• Hasan 2005
• Graham 1982
• Conway 1989
• Steane 1947

Answer 8

All require a threat of death or serious personal injury- requirement in keeping with all other modern jurisdictions.

Steane: held that threat of violence or imprisonment as duress however duress was not considered an issue in that case.

Question 9

Lord Wilberforce in Abbott v R 1976

Answer 9

This dictum no longer applies to killing but good for other acts:
‘The more dreadful the circumstances of the killing, the heavier the evidential burden of an accused advancing such a plea, and the stronger and more irresistible the duress needed before it could be regarded as affording any defence’.

Question 10

Singh 1973

Answer 10

Threats of blackmail, not matter how effective are not sufficient.
-there is no contemporary case in which a threat of injury to property has been admitted.

Question 11

From whom/what must the threat emanate?

Answer 11

The threat must have some source extraneous to the D himself.

Question 12

Safi and Others 2003

Answer 12

• there is no requirement for there to be a threat in fact.
• sufficient that D believes that there is a threat of the relevant gravity.

Safi- Afghan hijackers who landed at Stansted claimed that their fear of persecution at the hands of the Taliban constituted a defence of duress of circumstances.

Question 13

Threats against whom?

Hurley and Murray 1967

Wright 2000

Conway 1989

Shayler 2001

Answer 13

Most of the cases naturally involve a threat or danger to D himself but the defences are not limited to that situation.

Hurley and Murray- Supreme Court of Victoria held that threats to kill or seriously injure D’s wife amounted to duress.

Wright- threats against D’s boyfriend sufficed.

Conway- threat to passenger in car sufficed.

Shayler - ‘the evil must be directed towards the D or a person or persons for whom he has responsibility.

Question 14

D’s response to threat

Howe

Answer 14

In Howe the House of Lords held that the defence fails if:
‘The prosecution prove that a person of reasonable firmness sharing the characteristics of the D would not have given way to the threats as did the defendant.

Question 15

Graham was the correct direction for the finding of duress

Answer 15

Directions contains 3 objective elements:

1) D must have reasonably believe in the circumstances of the threat. (Reasonableness was Firmly endorsed in Hasan and by the Law Commission).
2) D’s belief must have amounted to good cause for his fear.
3) D’s response must be one which might have been expected of a sober person of reasonable firmness.

• there was a fourth element however not mentioned in Graham.
  4) D must have had no reasonable opportunity to escape the threat.

(G was a homosexual who lived with his wife and his lover, threatened by King, G took part in strangling of his wife with an electric flex. On the facts the CA did not consider duress existed as the threats were not sufficiently grave).

Question 16

The person of reasonable steadfastness

Answer 16

Since duress is according to Howe and Hasan a concession to human frailty, and some people are frailer than others, it is arguable gang the standard of fortitude should vary and a subjective test should be applied.

However this is not the test, Graham is consistent with the common approach of the law in deciding that the standard is an objective one.