Lecture 7- General Defences

Question 1

Defining Defences (2)

Answer 1

1.General/substantive defences
2.Denials of Proof

Question 2

General/substantive defence

Answer 2

AR and MR committed but D relies on a defence to escape liability

Question 3

Denials of Proof

Answer 3

Denial that AR or MR is present-no conviction may follow if one is not proven

Question 4

General Defences

Answer 4

1.Private/Self-defence
2.Duress
3.Necessity

Question 5

Denial of Proof Defence

Answer 5

Intoxication

Question 6

Justificatory Defence

Answer 6

Justified conduct is correct behaviour which is encouraged or at least tolerated.

In determining whether conduct is justified, the focus is on the act, not the actor

Question 7

Excusatory Defence

Answer 7

An excuse represents a legal conclusion that the conduct is wrong, undesirable, but that criminal liability is inappropriate because some characteristic of the actor vitiates society’s desire to punish him.

The focus in excuses is on the actor

Question 8

Self-defence is?

Answer 8

Justificatory

Question 9

What must be proven?

Answer 9

1.Need for defensive action according to the D’s perception

2.The amount of force which can be used

Question 10

Prevention of a crime Statute

Answer 10

Criminal Law Act 1967

Question 11

S3(1)

Answer 11

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 12

Defence of oneself or another- Statute

Answer 12

Criminal Justice and Immigration Act 2008

Question 13

Degree of Force- S76(3)

Answer 13

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

Question 14

S76(4)

Answer 14

If D claims to have held a particular belief as regards the existence of any circumstances –

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not –

(i) it was mistaken or

(ii) (if it was mistaken) the mistake was a reasonable one to have made.

Question 15

S76(5)

Answer 15

But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

Question 16

Risk to

Answer 16

The victim must pose a risk to the defendant or someone else
R v Hitchens[2011]

Question 17

Reasonable Mistake?

Answer 17

Gladstone Williams [1987] The mistake does not have to be reasonable.

if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not

Question 18

S76(5)
Intoxication Case

Answer 18

Taj [2018]
‘Attributable to intoxication’ is not confined to cases where the intoxicating substance is still in the D’s system

Question 19

Pre-Emptive Case

Answer 19

Beckford [1988]
A pre-emptive strike may be justified

a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot

Question 20

Pre-emptive Section

Answer 20

S76(6A)
In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat

Question 21

AG’s Reference (No 2 of 1983) [1984]

Answer 21

Defence of lawful purpose on the basis that the petrol bombs would be used in self-defence in the future

Question 22

Amount of Responsive Force- Section

Answer 22

S76(6)

In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances

Question 23

Palmer [1971]

Answer 23

Is the force used objectively proportionate to the threat in the circumstances as the defendant perceived them to be?

Objective Test

Question 24

Householder Cases-Section

Answer 24

S76(5A)
In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances

Question 25

Householders : Two Requirements + Case

Answer 25

R (Denby Collins) v Secretary of State for Justice [2016]
To acquit:
1.The force must be reasonable
2.The force is not grossly disproportionate

Question 26

‘Grossly Disproportionate’

Answer 26

R v Ray [2017]
D (householder) is liable if he uses grossly disproportionate force and may be liable if the force used is disproportionate if it is also unreasonable.

Question 27

Householder Case Requirements

Answer 27

Grossly disproportionate force is not reasonable

If the force used was disproportionate, the jury must decide whether it was reasonable

Question 28

Criminal Conduct

Answer 28

R v Gill (Kuran) [2023]
The defence is granted even if the householder was engaging in criminal conduct

Question 29

Excessive Force

Answer 29

Clegg [1995]
The use of lethal force was grossly disproportionate.
Calculated with regards to the mischief to be averted

Question 30

Article 2 ECHR

Answer 30

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:

in the defence of any person from unlawful violence

Question 31

Difference to English Law

Answer 31

1.The level of force that may be used: the killing must be absolutely necessary and strictly proportionate according to the European Court, but only reasonable under the English and Welsh law.

2.Whether the defence can be used if the defendant mistakenly believes they or another are being attacked: only if that mistake is based on a good reason according to the European Court, but as long as it is genuinely held under English and Welsh law

Question 32

Duress by Threat (2)

Answer 32

To establish the defence a defendant must show that:

1.they committed the crime because of threats of death or grievous bodily harm;

2.a reasonable person would have acted as the defendant did.

Question 33

Justificatory or Excusatory?

Answer 33

Excusatory defence

Question 34

Threat of death or serious injury

Answer 34

Valderrama Vega [1985]

The Court of Appeal held that he could still rely on the defence of duress as long as the threats of death or serious injury were for him a substantial reason for committing the crime. They did not have to be the only reason.

Question 35

Responsibility?

Answer 35

Threat can be directed against someone for whom D feels responsible.

Question 36

Outside Source

Answer 36

Rodger and Rose [1998]
They argued that they had become so depressed because of the conditions in prison that they would have committed suicide had they not escaped. They were therefore facing a threat of death. The Court of Appeal held that duress was not available because the threat of death did not come from a source extraneous to the defendants.

Question 37

Genuine and Reasonable Belief in the Threat

Answer 37

Graham [1982]
Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [that person] would kill him or cause him serious personal injury?

The D must have reasonable grounds of belief.

The belief must be HONEST and REASONABLE

Question 38

Objective Test + Case

Answer 38

Graham [1982]
[H]ave the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did, by taking part in the [offence]?

Question 39

Characteristics Case

Answer 39

R v. Bowen [1996]

Question 40

Which characteristics can be taken into account?

Answer 40

Bowen provides a reasonably clear description of how a trial judge should decide whether a characteristic can be ascribed to the reasonable person. Two things are required:

1.The characteristic must provide a reason for failing to live up to the standards of the reasonable person

2.The characteristic must not be self-induced

Question 41

For what purposes are the characteristics relevant?

Answer 41

1.To affect the level of firmness expected.

2.To affect the ability of the defendant to escape from the threat (e.g. physical disability).

3.To affect the gravity of the threat (e.g. pregnancy).

Question 42

Imminence of Threat

Answer 42

Hudson and Taylor [1971] The threat must be effective when the crime is committed/there is no absolute requirement to seek police protection

Question 43

Immediacy Requirement- Hasan

Answer 43

It should however be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action

Question 44

Voluntary Exposure to Threat

Answer 44

R v Hasan (or R v Z) [2005]
Defence is excluded for those who voluntary associate with other engaged in criminal activity
(Judged objectively/subject to compulsion must be foreseen)

Question 45

Murder

Answer 45

Howe [1987]
Duress is not a defence to murder

Question 46

Attempted Murder

Answer 46

Gotts [1992]
Duress is not a defence to attempted murder

Question 47

Duress of Circumstances

Answer 47

Duress of circumstances is wider than a necessity defence would be, in that it covers the situation where the defendant reasonably believed there to be a threat of death or serious injury, even if there was in fact no such threat.

Question 48

Duress of Circumstances Case

Answer 48

Willer (1986)
Duress of circumstances is determined by the jury

Question 49

Necessity

Answer 49

Dudley and Stephens (1884)
Necessity is not a defence to murder
‘Choosing the lesser of two evils’

Question 50

Justificatory or Excusatory?

Answer 50

Justificatory defence (the act is the right thing to do in the circumstance)

Question 51

Modern Case

Answer 51

Re A (Conjoined Twins) [2001]
In this case Brook LJ found that a defence of necessity could be pleaded when:

a) the act was needed to avoid inevitable and irreparable evil

b) no more was done than reasonably necessary for the purpose to be achieved

c) the evil inflicted was not disproportionate to the evil avoided.

Question 52

Intoxication

Answer 52

Voluntary Intoxication
Specific Intent Crime (No liability)

Basic Intent Crime (Liability)

Involuntary Intoxication
No Liability

Question 53

Specific Intent

Answer 53

Murder, wounding with intent (OAPA 1861, s.18), criminal damage with intent to endanger life, theft, an attempt to commit any offence

Question 54

Basic Intent

Answer 54

Manslaughter, unlawful wounding (OAPA 1861, s.20) and other assaults, indecent assault, criminal damage, rape, taking a motor vehicle without consent

Question 55

Intoxication Case

Answer 55

DPP v Majewski [1977]
Intoxication is not a defence for crimes of basic intent / the intoxication supplies the MR

Question 56

Recklessness

Answer 56

His course of conduct, in reducing himself by drugs or drink to that condition in my view supplies the evidence of mens rea, or guilty mind, certainly for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases

Question 57

Voluntary Intoxication

Answer 57

Heard [2007]
Voluntary intoxication does not mitigate the necessary intention.

Question 58

Specific Intent (ulterior?)

Answer 58

Heard 2007: Specific intent crimes require some ulterior intent (went beyond the AR eg theft with intent to permanently deprive) Attempt to form a principled basis of the distinction.

Question 59

‘Dutch Courage’

Answer 59

G for Northern Ireland v Gallagher [1963]
The defence is not available if intent was formed before the intoxication

Question 60

Drunken Mistakes

Answer 60

S76
But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
Taj

Question 61

Involuntary Intoxication (Burden)

Answer 61

Allen [1988]
Involuntary intoxication requires a high burden of proof

Question 62

MR

Answer 62

Kingston [1994]
Involuntary intoxication does not provide a defence where the D had the required MR

Question 63

Reform?

Answer 63

Does the current law reflect the nature of the wrongdoing accurately?

The person who commits an assault while extremely drunk without being aware of any risk v the person who is reckless in the conventional sense that foresees the risk. This distinction cannot be justified.

New special offence for persons who commit wrongful act while voluntarily intoxicated?

This would lead to an expansion in the number of offences ( drunken assault etc)