General Defences

Question 1

What are general defences?

Answer 1

There are various defences available to a person charged with an offence.

Some defences are specific to certain offences (e.g. criminal damage and murder) whereas others can be used to answer a wider range of charges and are often referred to as ‘general defences’.

Question 2

What are some general defences?

Answer 2

Automatism

Intoxication: Voluntary or Involuntary

Inadvertence and Mistake

Duress

Duress of Circumstances

Defence of Self, Others or Property

Question 3

What is automatism and how may it be grounds to claim it as a defence?

Answer 3

If defendants have total loss of control over their actions, they cannot be held liable for those actions and there may be grounds to claim a defence of automation. Drink and drugs don’t apply.

e.g a swarm of bees flies into a car causing a reflex action by the driver resulting in an accident (an example given in Hill v Baxter [1958]

Question 4

What is the difference between voluntary intoxication and involuntary intoxication?
.
.
.
What is an about distinction between the two?

Answer 4

Voluntary intoxication (you got yourself in that condition)

Involuntary intoxication (you are not responsible for getting in that condition)
.
.
.
The distinction is important when considering whether the offence alleged is one of ‘specific’ or ‘basic’ intent

Question 5

Can voluntary intoxication be used as a defence for certain crimes?

Specific intent vs Basic intent

Answer 5

Where an offence is a specific intent offence defendants who were voluntarily intoxicated at the time the offence was committed may be able to show they were so intoxicated that they were incapable of forming the mens rea required for the offence.

An individual who is voluntarily intoxicated would not be able to say this if accused of an offence of basic intent as the courts have accepted that a defendant is still capable of forming basic intent even when completely inebriated (DPP v Majewski [1977])

Question 6

Can involuntary intoxication be used as a defence for certain crimes?

Answer 6

Where the offence is a basic intent offence, such as s. 47 assault, defendants who were involuntarily intoxicated (perhaps because their drink had been spiked) at the time of the offence may be able to say that they lacked the mens rea for that basic intent offence.

Question 7

Difference between voluntary intoxication and involuntary intoxication with regards to defences for specific intent vs basic intent.

Answer 7

Voluntary intoxication can be raised in answer to a charge of an offence of specific intent but not basic intent.

Involuntary intoxication can be raised in answer to a charge of both specific and basic intent.

Question 8

If defendants simply misjudge the amount or strength of intoxicants which they take, will this regarded as involuntary intoxication?

Answer 8

No - so if a defendant knowingly drinks beer but is unaware that the beer has been laced with vodka, this will still be ‘voluntary’ intoxication.

Similarly, if defendants can be shown to have actually formed the required mens rea necessary for the offence, intoxication (voluntary or involuntary) will not be available as a drunken intent is still an ‘intent’ (R v Kingston [1995] 2 AC 355).

Question 9

Where the defendant forms a ‘mistaken belief’ based on the fact that he/she is intoxicated, that belief may sometimes be raised as a defence.

Give an example of where this may be the case?

Answer 9

In cases of criminal damage where a defendant has mistakenly believed that the property being damaged is his/her own property, and that mistaken belief has arisen from the defendant’s intoxicated state, the courts have accepted the defence under s. 5 of the Criminal Damage Act 1971 (Jaggard v Dickinson [1981] QB 527).

Question 10

Where the defendant forms a ‘mistaken belief’ based on the fact that he/she is intoxicated, that belief may sometimes be raised as a defence.

Give an example of where this would not be the case?

Answer 10

Where a defendant charged with murder could not rely on a mistake induced by his own voluntary intoxication and claim ‘self-defence’), or where the defendant mistakenly believed that the victim of a rape was consenting to sexual intercourse.

Question 11

If defendants become intoxicated in order to gain false courage to go and commit a crime will they be able to claim a defence of intoxication?

Answer 11

No - even if the crime is one of specific intent.

This is because they have already formed the intent required and the intoxication is merely a means of plucking up ‘Dutch’ courage to carry it out (Attorney-General for Northern Ireland v Gallagher [1963] AC 349).

Question 12

How may inadvertence and mistakes be used as a defence?

Answer 12

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 the mens rea for 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 any mens rea of ‘dishonesty’.

Question 13

There are occasions where a genuine mistake on the part of the defendant may amount to a defence.

In R v Lee [2001], a case arising from an assault on two arresting police officers, the Court of Appeal reviewed the law in this area, reaffirming the following points:

Answer 13

• A genuine or honest mistake could provide a defence to many criminal offences requiring a particular state of mind, including assault with intent to resist arrest (R v Brightling [1991])
• A defence of mistake had to involve a mistake of fact, not a mistake of law.
• People under arrest are not entitled to form their own view as to the lawfulness of that arrest. They have a duty to comply with the police and hear the details of the charge against them (R v Bentley (1850) 4 Cox CC 406).
• Belief in one’s own innocence, however genuine or honestly held, cannot afford a defence to a charge of assault with intent to resist arrest under s. 38 of the Offences Against the Person Act 1861.

Question 14

How may duress be used as a defence?

Answer 14

Where a person is threatened with imminent death or serious physical injury unless he/she carries out a criminal act, he/she may have a defence of duress.

The threat of serious physical injury does not appear to include serious psychological injury (R v Baker [1997])

Threats of death/serious harm to loved ones may allow a defence of duress.

Question 15

What are the key elements to using duress as a defence:

Answer 15

• 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 sometime in the distant future.

Question 16

When is duress not available as a defence?

Answer 16

If 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.

If defendants knowingly expose themselves to a risk of such a threat of death or serious physical injury.

Question 17

How may duress of circumstances be used as a defence?

Answer 17

There may be times when circumstances leave the defendant no alternative but to commit an offence.

In R v Martin [1989]: The defendant is stopped in his car by police. He is discovered to have driven while disqualified. The reason he gave for doing this, was that his wife had threatened suicide had he not driven their son to work. The defendant wife had previously attempted suicide.

Question 18

When is duress of circumstances not available as a defence?

Answer 18

If the defendant commits a very serious offence in order to avoid very minor or trivial consequences, this defence is unlikely to be available.

E.g murder, attempted murder or treason.

Question 19

What is the difference between duress and duress of circumstances?

Answer 19

Duress comes from a threat made which compels him/her to commit an offence: a gun to the head type of situation where one person says to another ‘Do this or else . . .’.

With duress of circumstances, there is no such threat being made. Rather there is a threatening situation or set of circumstances from which the defendant wishes to escape and, in so doing, feels impelled to commit an offence as the lesser of two present evils.

Here the threat is ‘situational’ and the defendant feels ‘If I don’t do this, then the consequence will be death or serious physical injury . . .’.

Question 20

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 20

• 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?

Question 21

With duress of circumstances, is there a need for the threat to be ‘real?

Answer 21

Defendants need only hold an honest belief that those circumstances exist without necessarily having reasonable grounds for that belief.

Question 22

Where the common law defences of self-defence, defence of property or the Criminal Law Act 1967 defence of lawful arrest are raised in relation to taking someone’s life, the provisions of which article will apply?

Answer 22

Article 2 of the European Convention on Human Rights will apply.

Question 23

Human Rights

Article 2 of the Convention states:

Answer 23

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 24

When can force be used?

Answer 24

s. 76 of the Criminal Justice and Immigration Act 2008.

A person may use such force as is reasonable in the circumstances as he 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 25

What is the common law defence of self-defence?

Answer 25

s. 3(1) of the Criminal Law Act 1967.

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 26

What is reasonable force?

Answer 26

s43 Crime and Courts Act 2013

• That the degree of force used was REASONABLE to the circumstances as the defendant BELIEVED them to be.
• This belief must be genuinely held and can be mistaken.

Question 27

Give an example of reasonable force

Answer 27

John gets into a parking dispute with a van driver. When the driver gets out he sees that it is the local hard man Terry who is on bail for GBH and known to carry weapons. Terry walks hurriedly up to John. John believing he will be seriously hurt, punches Terry in the face, fracturing his skull. In fact, Terry just wanted to discuss what had happened.

John has simply reacted to the circumstances as he believed them to be.

Question 28

Defence of Property

What legislation covers this?

Answer 28

s. 3(1) of the Criminal Law Act 1967 states reasonable force may be used in the prevention of crime. Therefore if a person is acting in order to prevent a crime against his/her property, it follows that reasonable force can be used to protect property.

Grossly disproportionate force, however, will never be reasonable.

Question 29

How is infancy used as a general defence?

Answer 29

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

Question 30

General Defence of The Right to Life (Article 2) and the occasions where the state may be required to take the life of someone…

Answer 30

(1) Everyone’s right to life shall be protected by law. No one shall be deprived of this life intentionally…

The convention recognises that there may be occasions where the state may be required to take the life of someone:

(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.

• The force must be no more than absolutely necessary.
• If it is strictly proportionate to the circumstance.

Question 31

General Defence of The Right to Life (Article 2) and the occasions where someone is killed.

1. Case Study:
2. It was examined by the European Commission on Human Rights and found that a number of areas had to be satisfied:
3. Other factors will also be considered such as:

Answer 31

1. Stewart v UK (1985): A case where a boy was killed with a baton round fired by a soldier. This was during an outbreak of disorder.

2.

• The aim being pursued,
• The dangers to life and limb, and
• The risk of life balanced against the force used.

3.

• The planning and execution of the operation.
• The training of those involved.
• The instructions that they received prior and during.

Question 32

Give a case study of when a defence of duress was not upheld

Answer 32

R v Heath

• Defendant was stopped by police in his car and gound to be transporting drugs across the city.
• Defendant claimed he was under duress to deliver the drugs or would suffer physical harm from gang.

It was determined he had the opportunity to seek help and so defence was unsuccessful.

Question 33

If a defendant joins a gang do they avail themself of a defence of duress to any crimes they go onto commit under threat of serious harm or death?

Answer 33

No, they may not if they were aware the gang was inherently violent and dangerous.

However, if the game isn’t inherently violent nor dangerous then they may have that defence.

Question 34

When is involuntary intoxication not a defence (Dutch Courage)?

Answer 34

When the defendant (despite or because of the intoxication) formed the necessary mens rea at the time of committing the offence.

Thus, where the drink or drug removed the inhibitions of the defendant so that the acted in a way which he would not have done if sober, he will still be guilty fi able to form required mental element of the offence.

Question 35

Where a defendant is labouring under a mistaken belief they are under attack and acting in self-defence, can they use voluntary intoxication as an excuse for that mistake?

Answer 35

No - this applies to crimes of both basic and specific intent.

Question 36

Duress

Relationship between the threat and the crime

Answer 36

The defence will only be available where the defendant has been subjected to threats directing him to commit a specific crime. It is not available where they committed a crime to escape from other unrelated demands, e.g rob banks to pay off debts.

Question 37

In relation to duress, what is correct in relation to what the nature of the threat should be?

Answer 37

Must involve threats of death or grievous bodily harm.

Question 38

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

Answer 38

S elf defence/ defence of another
C rime prevention 
A nother's defence 
L awful arrest
D efence of property

Question 39

Human Rights - Taking Life

Article 2 of the European Convention on Human Rights (Right to Life) states that force used should be no more than necessary.

Lethal force may be permissible when carrying out DARE:

Answer 39

D efending ANY person from unlawful violence.
A rresting someone lawfully.
R iot/ insurrection (putting an end to riots lawfully).
E scape

Question 40

Question: HIMLEY has been charged with an offence of attempted murder. The circumstances are that she pushed CARTER into the path of a bus driven by MANNION. MANNION just managed to brake and swerve but still caused life-threatening injuries. HIMLEY states she only did this because her boyfriend threatened to cause her serious physical injury if she didn’t do so.

Does she have a defence of duress in these circumstances?

Answer 40

No, because the offence she is charged with is attempted murder.

Question 41

Steven has taken valium which has affected him. He then goes to his neighbours garden, smashes up the shed and sets fire to a plant stand. He is arrested and claims self-induced intoxication and that he cannot remember causing the damage or setting the fire.

What should the jury should be directed to consider in relation to a defendant claiming self-induced intoxication, when he couldn’t remember committing the damage or starting the fire?

Answer 41

The jury should have been directed to consider whether the defendant had been reckless in consuming the Valium, in the sense that he had been aware of the risks associated with its consumption, although not necessarily aware of the risk that he would actually commit aggravated criminal damage.

Question 42

Steven has been drinking all day watching the rugby. His brother Liam comes into the lounge after work and says “alright Steve”. Steven looks at him and it is obvious he is really drunk. Steven gets up, stumbles towards Liam and punches him round the face causing a nasty cut under his eye (s.47 injuries). Liam pushes his back and Steven is arrested for assault. In custody Steven sobers up and states he was very drunk, doesn’t remember even hitting Liam, let alone why he did it.

Could Steven have a defence under voluntary intoxication?

Answer 42

No, Steven cannot have a defence as he has committed a basic intent offence.

Remember the defence of voluntary intoxication does not apply to offences of basic intent as it has been held that defendants are still capable of forming basic intent even when completely under the effects.

S.47 ABH is an offence of basic intent, therefore the defence is not applicable.

Question 43

You attend a training course on counter terrorism. The trainer asks the class if the ‘defence of duress of circumstances’ can ever be used in hijacking offences and other highly serious offences.

Is this true?

Answer 43

Yes, the defence of duress of circumstances could be available to hijacking and other serious offences.

Other than murder, attempted murder or treason, it seems that the defence of duress of circumstances could be available against any other charge. This would include terrorism offences such as hi-jacking (R v Abdul-Hussain 1999)

Question 44

Claire was involved in a serious RTC and needed months of rehabilitation just so she could walk again. Claire finds herself in constant pain and as finds that smoking cannabis relieves the pain she is in. Claire is stopped and charged with possession of cannabis.

Can Claire avail herself of ‘defence of duress of circumstances’ to her cannabis use / possession?

Answer 44

No, Claire’s pain cannot amount to significant physical harm.

R v Altham (2006) the decision was made that pain will not amount to significant physical harm, hence it is not available.