Week 7 Criminal law- defences

Question 1

What is the current law on infancy? How has the case of T 2009 reinforced the law?

Answer 1

• The common law idea that children aged between 10-14 had a defence of doli incapax unless it could be proved that they knew it was seriously wrong was abolished.
• S34 of Crime and disorder act 1998 says “The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is abolished”. The defence rather than the mere presumption had been abolished despite contention.
• Following T [2009] 1AC 1310, HL concluded there was no authority for the existence of the defence separate from the presumption and that parliaments intention was clearly to abolish the concept of doli incapax as having any effect in law.
• “B, who was aged 12 at the time of the offences, had been convicted on 12 counts of causing or inciting a child under 13 to engage in sexual activity. He had pleaded guilty after the trial judge ruled that the defence of doli incapax was not available to him. B’s appeal against conviction on the ground that the judge’s ruling was wrong was unsuccessful.”

Question 2

Why is a very strict approach taken declaring someone unfit for trial?

Answer 2

• Finding someone unfit for trial denies their right to a full criminal trial and therefore a very strict approach is required. If someone is found to be unfit to trial, a new approach is undertaken in that a trial of the facts is undergone. This determines whether the actus reus of the crime was committed by D, and he may be acquitted if this cannot be proved. If its found that he has done the acts, a range of disposal powers will be enforced, as he has not been convicted, including admission to a mental institution.

Question 3

What is the M’Naghten rule?

Answer 3

• M’Naghten rule: “The jurors ought to be told in all cases that every man is presumed to be sane, and to possess sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong”

Question 4

How can the M’Naghten rule be simplified into different components?

Answer 4

• Everyone presumed to be sane unless proven otherwise
• Lapse of judgment
• D must know neither the nature and quality of his act (denial of mens Rea) arising from a disease of the mind or;
• Even though he knows the nature and quality of his act, he could not know it was wrong because of a disease of the mind

Question 5

What is the significance of Ds act coming from a disease of the mind and not simply a lack of MR?

Answer 5

• Has to be a defect of reason from a disease of the mind, otherwise its likely that his mistake came from a lack of mens rea and therefore would lead to an acquittal anyway. In the former case it relies on evidence from D whereas in the latter case it is on the prosecution to prove otherwise. However if D simply doesn’t realise its wrong, this wont amount to a defence.
• The judge is the adjudicator on whether the disease of the mind suffices for a plea of insanity, expert evidence is nothing more than a guide for the judge, and cannot be conclusive in law.

Question 6

What is the difference between insanity and sane automatism?

Answer 6

• Distinction between insanity and sane automatism; a transitory malfunction of the mind is not a disease of the mind when it is caused by some external factor eg a concussion, alcohol or drugs. In such cases where is a total loss of capacity sane automatism may be pleaded, and imposes no burden of proof on D. Whereas insanity must be proved by D on the balance of probabilities and results in a special verdict of not guilty by reason of insanity, alongside extensive actions in relation to what the defendant should be subject to after his trial.

Question 7

What does Sullivan 1984 show about what constitutes a disease of the mind?

Answer 7

• Sullivan 1984 AC 156: the defence to a charge of assault occasioning ABH was that D attacked V whilst recovering from a minor epileptic seizure and did not know what he was doing. The Lords rightly saw this amounted to a defence of insanity, D then changed his plea to guilty, to an offence that he blatantly wasn’t culpable for, but his conviction was upheld.
• Diseases of the mind are not necessary ones which derive from the mind but those which affect the functioning of the mind, such as a tumour, epilepsy or even diabetes.

Question 8

Quick 1973 facts and significance
(diabetes and insanity)

compared to Hennesy 1989

Answer 8

• Quick 1973 QB 910: D who had caused ABH called medical evidence to show that he was a diabetic and that he was suffering from a hypoglycaemic attack at the time of the alleged offence and was unaware of what he was doing (defence of insanity), which D pleaded guilty. On appeal it was held that Ds mental condition at the time of the offence was caused not by Ds diabetes (internal factor) but by his use of insulin prescribed by the doctor coupled with his failure to follow that prescription by eating after injecting insulin (external factors). A plea of sane automatism should’ve been left to the jury. Shows fine line between the two pleas and the possible success of such pleas.
• In Hennesy the taking of another persons car was due to a hyperglycaemic episode as it resulted from his underlying diabetes and could properly be described as a disease of the mind.

Question 9

What effect must Ds disease of the mind have on his reasoning abilities?
(Clarke 1972 depression and absentmindedness)

Answer 9

• The ‘disease of the mind’ has to have given rise to a ‘defect of reason’; Ds power of reasoning must be impaired and Ds mere failure to use powers of reasoning which he possesses does not bring him within the M’Naghten rules.
• In Clarke, D claimed that she had taken articles from a supermarket without paying for them because of absent-mindedness resulting from depression it was held that even if she was suffering from a disease of the mind, (which is arguable), she had not raised the defence of insanity but was simply denying that she had MR. This could help recognise those who are morally irresponsible.

Question 10

What does ‘nature and quality’ refer to in the M’Naghten rules of insanity?
(not legal or moral reasoning)

Answer 10

• The phrase nature and quality of his acts refers to the physical nature and quality of the act and not to its moral or legal quality. It simply means D did not know what he was physically doing and therefore has narrow applications. Strange but relevant example is the man who cuts a womans throat believing himself to be cutting a loaf of bread. Obviously they have no mens rea here and therefore cant be murderers anyway, but the distinction is that if the delusion arose from a disease of the mind, he will be detained in hospital but some other cause will see him go free. Insanity can be pleaded as a defence irrespective of whether it is an offence of mens rea.

Question 11

Why and how is D acquitted (or not) on a decision of not guilty by insanity when he does not know that his acts are wrong?

Answer 11

• This is not concerned with whether the accused is able to distinguish between right or wrong in general, but whether he was able to appreciate the wrongness of the particular act he was doing at the particular time of the alleged crime. It has always been clear that if D knows his act was contrary to the law, he knew it was wrong (R v Johnson), even if morally, he believed it to be right/ justifiable.
• Even if D did not know that it was contrary to the law, he was still liable if he knew it was wrong ‘according to the ordinary standard adopted by reasonable men’ (objective)
• Modern cases suggest the courts are concerned with Ds knowledge of legal rather than moral wrongs. If he is suffering from diseases but still knows that it is legally wrong, he can still be liable for the crime.

Question 12

Johnson 2007 facts and significance (wrongs as a matter of law not morals)

Answer 12

• J was convicted of wounding with intent to cause grievous bodily harm. Following his arrest, he was diagnosed with paranoid schizophrenia and it was agreed that he had been suffering from this at the time of the attack. At trial, the plea of insanity was not available to J because evidence suggested that he knew what he was doing was against the law. Authority which rejects the arguments of the defence that D should be acquitted if, knowing his act to be wrong as a matter of law, he still believes it to be morally right. The CA confirmed ‘wrong’ is to mean legal wrong rather than moral wrong.

Question 13

What is the difference between a plea of insanity and insane delusions which aren’t relevant to Ds actions?

Answer 13

• Must distinguish between when D is acquitted because he has a reasonable mistake as to the facts and then when he is delusional because of a disease of the mind. The rule seems merely to emphasise that delusions which do not prevent D from having mens rea will afford no defence.
• As Lord Hewart put it “the man who thinks he is John the Baptist does not entitle him to shoot his own mother”. Therefore, insane delusions do not negate criminal liability.
• D cannot claim that he suffered from an insane delusion which led to a mistake without pleading insanity; where he is insanely delusional but this does not arise from a disease of the mind, this does not preclude him from liability.

Question 14

What is the basis of automatism?

Answer 14

• Automatism is a common law defence
• A claim by D that his consciousness was so impaired that he was acting in a state of physical involuntariness is a claim of automatism. Someone is an automaton where his conscious mind is dissociated from that part of the mind which controls action.

Question 15

What are the two types of automatism?

Answer 15

• Two basic types: 1) Automatism arising from an internal cause from a disease of the mind, this is a plea of insanity (insane automatism) where D must prove that he did not know of the nature and quality of his act. 2) Any external cause leading to a total loss of control (sane automatism). D is not guilty unless D was at fault in inducing that state of automatism. Someone in a state of automatism (other than self-induced intoxication) cannot be guilty of an offence of it and the only question is whether he is to be found simply ‘not guilty’ or ‘not guilty by reason of insanity’. The outcome depends on how the automatism arose; arising by disease of the mind is the latter and anything else it the former. As seen before, any internal factor, mental or physical, causing a malfunction of the mind is a disease of the mind in law.
• Must be remembered that a plea of insanity will see the onus of proof fall on the defendant to prove on a balance of probabilities, but a plea of sane automatism arising from an external factor will see the evidential burden fall on the prosecution to prove that it is not the case.

Question 16

How will the plea of sane automatism be successful or fail depending on whether D has taken prescription drugs or non prescription drugs, of the dangerous and non-dangerous type? (sane automatism related to the same rules as intoxication)

Answer 16

1) automatism arising from D taking a substance in compliance with his prescription= complete acquittal
2) automatism arising from D taking a substance other than in accordance with prescription= acquittal for specific intent crimes only
3) where D voluntarily takes drugs known to induce aggression or unpredictability (alcohol)= acquittal only for specific intent crimes
4) where D voluntarily takes drugs not known to cause aggression or unpredictability, he will only be acquitted of basic intent crimes if he was not subjectively reckless as to committing the AR of the basic intent crimes as a result of becoming intoxicated (Hardie)

Question 17

How is necessity different to duress of circumstances?

Answer 17

-Duress of circumstances separated necessity and duress of circumstances because necessity doesn’t see D subject to being ‘irresistibly overborne with external pressure’. Duress is a threat of death or serious harm whereas necessity may not be so.

Question 18

Quayle 2005 facts and significance?

Answer 18

Facts- D appealed his conviction for growing cannabis which was used to help treat their medical condition

Significance- necessity does not allow D to act at complete odds with parliaments intention to prohibit behaviour, especially here where even doctors weren’t allowed to prescribe weed.
-Necessity requires that there is an overborne hardship under which D must choose between breaking the law or being subject to this hardship, although such a hardship does not have to overborne D with imminent threat to life as it does with duress.

Question 19

What must the nature of the threat be to D for necessity and how could it be criminal or non-criminal threat?

Answer 19

• There should be some imminent threat of serious death or harm.
• Traditional examples where the defence arises is where there is a danger to life, and the courts seem to have decline that the defence is available for anything less, such as theft of food for starving children. There have been cases where something less than a threat to life or serious injury has sufficed, but only involving a slight extension of ‘duress of circumstances’.
• Been held that D may rely on a defence of necessity where he is faced with natural disaster, accidents caused by human actors or criminal threats.

Question 20

What is the general principle of Stephens and Dudley and why?

Answer 20

• Decided in Stephens and Dudley that duress of circumstances or necessity is not a defence to murder. Facts of the case are that Dudley killed and ate a boy whom he was shipwrecked with for 18 days in an open boat without food. It was found that the men probably would’ve died if they hadn’t done so and the boy probably would’ve died before they were rescued, and yet they were indicted for murder. Held that such a defence would rapidly reduce morality and further, the immorality of measuring and selecting a victim.
• The principle in Stephens and Dudley is distinguishable where there is no problem of selection, where both are going to die, it is immaterial whether two people die quicker as a result of one of their actions, pending immediate death anyway.

Question 21

What is the best interest necessity as shown in Re A(conjoined twins) and what general principles does it show (distinguished from Dudley and Stephens)

Answer 21

• Re (a) Conjoined twins: The court held that in special circumstances it was lawful to kill the weaker of the two twins, B, in order to save the life of the stronger, A. This was not a simple matter of choice, as both would die if the operation to detach the twins wasn’t undertaken, but A would likely survive if they were detached whereas B would die anyway. 3 requirements for the defence of necessity were: 1) The act is needed to avoid inevitable and irreparable evil. 2)No more should be done than is reasonably necessary for the purpose to be achieved and 3) the evil inflicted must not be disproportionate to the evil avoided. In this case, unlike Stephens and Dudley, A was selected via the circumstances. HOWEVER this authority is not claiming to be an authority for necessity as a defence for murder “This case is too slender a thread on which to hang a far-reaching development of the common law”
• Didn’t require a value judgement as in Dudley and Stephens.

Question 22

Pommell 1995 facts and significance (failure of necessity defence)

Answer 22

Pommell 1995 2 Cr App: police officers discovered the defendant to be in possession of a firearm without a firearms certificate. The defendant sought to raise the defence of necessity or duress of circumstances, on the basis that he had been visited in the early hours by a friend who intended to kill another person. The defendant had taken the gun in order to prevent the killing and had intended handing over the gun to the police the following day. It was held that the continued availability of the defence was dependant on the defendant desisting from the commission of the offence as soon as he reasonably could. Firstly, he had failed to give the gun to the police as soon as he reasonably could, which led to his first conviction.

Question 23

What is the basis of the defence of mistake?

Answer 23

-This so-called defence is essentially just a denial of the mens rea of the substantive offence because the facts were not as D believed them to be and a reasonable person in the same situation would have made a similar mistake. Only mistakes which relate to an issue which the prosecution have to prove will have any bearing on Ds liability.

Question 24

DPP v Morgan and the impact on a mistake leading to a denial of mens Rea?

Answer 24

DPP v Morgan: D was a Royal Air Force Pilot and he had invited his friends over to have sexual intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack of consent and that she enjoyed it. The men were convicted of rape, while Morgan was convicted of aiding and abetting the rape of his wife. The men had argued that they had the honest belief that the complainant had consented to sexual intercourse. The House of Lords held that an honest but mistaken belief that the victim was consenting would provide a complete defence (before 2003 act); the basis for that belief did not need to be objectively reasonable so long as the jury were satisfied that the defendant honestly believed it. While the defendants won their legal argument, their convictions were nonetheless upheld, as it would be highly immoral to suggest that the woman did not suffer any crimes against her.

Question 25

What tests apply to Ds mistake in necessity (reasonableness, subjective or objective etc)

Answer 25

• Ds belief does not need to be reasonable, but it must be genuinely held.
• Although Ds belief does not need to be reasonable, the more unreasonable it is, the less likely the jury is to accept that it was genuinely held. Where the natural inference from Ds conduct in the particular circumstances is that he intended or was reckless towards a particular result, the jury are very likely to convict him if he introduces no testimony that he did not in fact foresee, but the onus of proof remains on the crown throughout.

Question 26

How does the subjectivity principle mistake differ between duress and self defence?

Answer 26

Subjective approach taken in self-defence but not in duress, duress is assessed objectively in that it had to be objectively reasonable for D to commit the AR and MR of the crime, and that their actions were objectively reasonable.

Question 27

What does Owino say about the use of force by D in a case of self-defence?
(general principles about Ds mistaken beliefs for self defence and how they differ to duress)

Answer 27

• A subjective belief, no matter how unreasonable, will suffice for a case of self-defence, but an objective view is taken as to whether, in the facts known to D, D used force expected of the reasonable man with similar characteristics in Ds situation.
• The defendant must be charged in accordance with his honest belief, even though that belief may be mistaken. But the jury has then to decide whether the force used was reasonable in the circumstances as he believed them to be.
• An objective approach of reasonableness was to be taken towards a subjective mistake of facts by D.

Question 28

What is the principle for involuntarily intoxicated people forming mens Rea and committing crimes, as in Kingston 1992?

Answer 28

• If D had the MR for the required crime, it makes no difference whether his intoxication was voluntary or involuntary, nor whether the crime was one of specific or basic intent.
• Kingston 1995 2 AC 355: D had committed a sexual offence against a 15-year old boy, giving way to his paedophiliac inclinations because his drink had been laced by a third party. A drugged intention is still an intention. The fact he may not have committed such an offence if he hadn’t been spiked is immaterial. You can still possess MR of an offence whilst involuntarily intoxicated.

Question 29

How does involuntary intoxication operate as a defence for specific and basic intent crimes?

Answer 29

• Involuntary intoxication can operate as a defence for both specific and basic intent crimes, provided that D did not in fact form the requisite mens Rea despite his being involuntarily intoxicated
• Where D is involuntarily intoxicated but is still capable of forming mens Rea, but has not done so, he must be acquitted.
• However it will not operate as a defence for a strict liability offence, as these require no mens Rea on behalf of the defendant.

Question 30

What does s6(5) of the Public Order Act 1986 require D to do in a defence of involuntary intoxication?

Answer 30

-Show that his intoxication was in fact involuntary.

Question 31

What is the general principle for voluntary intoxication and basic/ specific intent crimes following Majewski?

Answer 31

• D is entitled to acquittal where his voluntary intoxication is such that he did not form the mens rea for the offence of specific intent, however this is only where there is an absence of mens rea and not just an inhibition of forming MR. Prosecution must prove mens rea.
• For crimes of basic intent (no further intent or recklessness needed that just performing the AR), D may be convicted if voluntarily intoxicated at the time of committing the offence by a drug which is known to create unpredictability or aggression, though HE DID NOT HAVE THE MENS REA required in all other circumstances for that offence, and even though he was in a state of automatism at the time of doing the act, he would’ve had mens rea if he was sober

Question 32

What were the facts of Majewski?

Answer 32

• Majewski 1977 AC 443: D assaulted a number of police officers when he was being restrained, after taking a combination of drink and drugs. D claimed that his self-induced intoxication was a sufficient plea which prevented him from forming the mens rea. The Lords affirmed his conviction and confirmed the rule in Beard that a self-induced intoxication would succeed if the crime charged was one of specific intent, but not to any other crime. Basic intent crimes eg sexual assault or rape therefore mean there is no defence as these require nothing more than the MR of the crime.

Question 33

What does becoming intoxicated have to do with having the mens Rea of a basic intent crime eg assault occasioning ABH? Why could it be unsatisfactory?

Answer 33

• What this appears to show is that in a case where one is charged with a crime of basic intent whilst voluntarily intoxicated, the crown need not prove any intention, foresight or voluntary conduct; Ds voluntary intoxication suffices for this mens rea. The mens rea must be proved in all crimes, except, the court must infer MR where the accused was intoxicated through the voluntary taking of drink or drugs, intending to become intoxicated.
• This dispels normal application of the presence of mens Rea to found criminal liability, as clearly in basic intent crimes where there is no defence of intoxication, no MR need actually be found on Ds behalf.
• It appears that Ds voluntary intoxication suffices as some kind of ‘prior fault’ which provides that Ds liability arises from the conduct elements of the crime coupled with this prior fault of drinking in the first place. But there is contention around this, as it seems wrong to equate Ds foresight or awareness of becoming intoxicated with the mens rea of the substantive crime. Heard suggests there is no ‘broadly equivalent culpability’.
• If D claimed that it prevented him from foreseeing or knowing what he would have foreseen or known whilst sober, he is guilty of the crime of basic intent. even though, subjectively, he does not hold the MR of the crime?

Question 34

How should the law on equating MR for basic intent crimes with intoxication be changed?

Answer 34

As with any other criminal procedure, Ds intoxication should not suffice for the MR of the crime. Ds recklessness that he might become intoxicated is not equatable with foresight or intention to commit a crime, and requiring the court to prove MR should still be sufficient.
-It won’t provide D with the ability to escape liability for basic intent crimes in the way that it does with involuntary intoxication, it would simply provide a means of keeping up with general principles of court procedure and the presumption of innocence, as D may very well have a lack of MR

Question 35

Facts and significance of Heard 2008, relationship between basic and specific intent crimes?

Answer 35

• Heard 2008 QB 43: D, whilst V intoxicated, rubbed his cock on a police officer’s leg, and Ds plea was that he had no recollection of the incident. This should have been the end of the matter and would never suffice for a plea. However, D relied on the defence of V intoxication to suggest it prevented him forming the MR of intention in intentional touching. However, the judge held that this was a crime of basic intent and therefore V intoxication was not a defence for this. The law does not require any purposive intent in the crime of sexual touching, for example there need not be an ulterior intent of gaining sexual gratification, just the MR towards performing the AR of the crime.

Question 36

What examples are there of specific intent crimes and what is the current guidelines to basic v specific intent crimes?

Answer 36

• Despite dicta in Heard and some strange conclusions in Majewski, it has generally been accepted that crimes of recklessness mens rea can be crimes of basic intent and not specific intent. The safest approach appears to be that ‘crime requiring specific intent’ means a crime where voluntary intoxication negating mens rea is a defence.
• Crimes requiring specific intent are as follows: murder, wounding or causing grievous bodily harm with intent (s18 OAPA), theft, robbery, burglary with intent to steal, handling stolen goods, causing criminal damage contrary to s1(2) or (1) of CDA 1971 where only intention to cause damage or intend to endanger life

Question 37

How does the defence of voluntary intoxication operate depending on the type of drug taken?
What case is authoritative for this?

Answer 37

-If drug is known to cause unpredictability and aggression, D is guilty of basic intent crimes
-If drug does not fall within this category eg sedatives, D will still be liable only if he was subjectively reckless as to committing the basic intent crime
Hardie 1985

Question 38

Facts and significance of Hardie 1985? D had taken sedatives and charged with damaging property with intent to endanger life

Answer 38

Ds defence to a charge of damaging property with intent to endanger life of another or being reckless whether another’s life be endangered, was that he had taken Valium, a sedative drug, to calm his nerves, and his resultant intoxication prevented him from forming mens rea. The court quashed his conviction, not applying Majewski, because Valium “is wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness… if the effect of a drug is merely soporific or sedative in taking in it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self-administration of dangerous drugs.”

Question 39

Jaggard v Dickinson facts and significance (mistakes arising from voluntary intoxication)

Answer 39

• Jaggard v Dickinson: D had a friend, H, who invited her to treat his house as if it was her own. When Drunk, D went to a house which she thought was Hs but was in fact Rs, who barred her way. D gained entry by breaking windows and damaging curtains, charged with criminal damage. She relied on the clause that she was entitled to acquittal if D believed she had consent to damage the house as if it was Hs. Was held that she couldn’t rely on V intoxication as a defence, as it had induced a mistake which she wouldn’t have made had she not intended to become intoxicated, but the mistake of fact arising from her intoxication sufficed for the clause in the CDA 1971.

Question 40

How does intoxication, self-defence and mistake operate together?

Answer 40

• Self-defence: A self-defence plea will succeed when there is a mistake of fact by D, and the situation taken to be as D had believed them to be, whether reasonable or not. HOWEVER, IN THE CASE OF VOLUNTARY INTOXICATION, A MISTAKE OF FACT CANNOT BE RELIED ON, EVEN ON A CRIME OF MURDER OR ANOTHER OFFENCE OF SPECIFIC INTENT; unless the mistake is allowed within the statutory provision of the relevant act eg CDA 1971, no matter whether its gained through voluntary intoxication or some other reason.

Question 41

What are the two types of duress, and what crimes do duress not apply to?

Answer 41

Duress by threats and circumstances: Always recognised duress by threats ie threats to Ds life which forces him to commit a crime. More recently also recognised duress by circumstances; where there is a similar threat against D but not by a specific person demanding that D commits the crime.
Duress and voluntariness- when D admits duress he admits that he had both the AR and the MR of the crime, in that he is voluntarily committed these aspects of the offences but cannot be held responsible due to the external circumstances. This does not, however, apply to murder, attempted murder or treason. In most cases D has a choice between the lesser of two evils; committing the crime or suffering himself, but with murder it is held that he should make the choice to take death upon himself. D intends to do the which, but for the duress, would be a crime.

Question 42

What must the level of threat be to D for a plea of duress? must this threat be actually real?

Answer 42

• Threshold of threat required must be very high, in that it must be a threat of death or serious personal injury. As Ireland and Burstow held that psychiatric injury can suffice for GBH, a threat of this may suffice for duress.
• Must distinguish between duress and necessity; necessity requires a threat of serious violence or death, whilst necessity includes proportionality and can relate to different threats to different crimes.
• There need not be a threat to life in actual fact; it is sufficient that D (objectively) reasonably believed there to be a threat. Such a threat might be relayed to a defendant indirectly, but the court will still have to apply the reasonable test.

Question 43

Who must the threats be made to for a plea of duress?

Answer 43

2) Threat made to D, immediate family or someone close, who D could reasonably be responsible for:
- Most of this is self-explanatory, but it is contended that someone who D is reasonably responsible for could be someone who is not immediately connected or even known, it might arise in the circumstances where X is threatened if D doesn’t act in a way which would help X. Held there is little restrictions on this criteria in practice.

Question 44

Is the test for Ds reasonable belief which causes a plea of duress subjective or objective?
What does Howe 1987 say about this?

Answer 44

3) Ds perception must be a reasonable belief and a reasonable response in and to the threat.
- Howe 1987 AC 419= the defence fails if “the prosecution prove that a person of reasonable firmness sharing the characteristics of D would not have given way to the threats as D did. In the first case, the two appellants, Howe and Bannister, and the victim were driven by M to an isolated area, where they assaulted the victim and M killed him. Similarly, the three jointly strangled another victim and a third victim managed to escape. They were charged with murder on two counts and with a conspiracy of murder on one count. Howe and Bannister claimed that they committed the crimes because they feared for their own lives if they did not do as M directed. They were convicted on the three counts. Held that duress wasn’t a defence to murder and the response had to be reasonable enough to the normal man with similar characteristics to D.

Question 45

Bowen 1997 facts and significance (characteristics which are and aren’t relevant to pleas of duress when assessing reasonableness)

Answer 45

• Bowen 1997 1 WLR 372: held that for duress plea, Ds age and sex may be relevant, depending on the circumstances, as may pregnancy and serious physical disability, but low IQ will not suffice for affecting the gravity of provocation. Bowen had obtained a number of electrical goods, over a series of visits to the value of £20,000. He had done so by applying for a number of ‘instant credit’ deals and paying a portion of the deposit but not completing the payment for any of the goods concerned. When Bowen gave evidence, he claimed that he had acted under duress. He said that two men had threatened him that he and his family would be petrol bombed if he did not obtain the goods and told that if he went to the police, his family would be attacked. Bowen was convicted and appealed the decision.
• Its conceded that courts are willing to take a more subjective approach to the first limbs of the test, to avoid being under-inclusive.

Question 46

How must the threat be linked to Ds action in duress?

Answer 46

• D must be ‘overborne’ by the threat, in that he would not have committed the offence but for the duress, a threat which might cause a reasonable person to do as D did. The threat need not be the sole motive for Ds actions but equally If its proved that D would have done as he did anyway, the offence will fail.

Question 47

What steps are D expected to take to avoid having to use duress as a plea?

Answer 47

• Ds response to the ‘imminent’ threat must be proportionate and reasonable, a relaxation on the previously held view that D must act knowing or believing that the threat is one which will be carried out immediately or before D can seek official protection.
• If D is reasonably able to resort to the protection of the police, he must do so, or the defence will be lost. When the threat is withdrawn or ineffective, D must desist from committing the crime.
• Much like the objective reasonable test of the gravity of the threat and the reaction, this is said to be a somewhat objective test which determines whether a reasonable person will have taken an opportunity to evade the threat. If D was not in fact aware of the opportunity for evasion, he should still have the defence, but recent decisions suggest this would be too generous

Question 48

What does Hasan 2005 say about D laying himself open to threats which cause him to plead duress?

Answer 48

• Hasan 2005- Hasan was charged with the crime of aggravated burglary. He was associated with a gang and relied on the defence of duress, pleading that he was blackmailed into committing the burglary to prevent his family from being harmed. The court held that the defence of duress was unavailable for Hasan because of his voluntary gang association and as such, he should have foreseen or ought to have foreseen the risk of being subjected to compulsion to commit criminal offences. While he may not have foreseen that he would be compelled to commit a burglary, his association with the gang and other persons with a tendency to commit unlawful acts was enough to exclude the defence.

where D foresees that his affiliation with people will lead him to be subject to threats, he does not have the defence of duress.

Question 49

How does the reasonableness of Ds reaction of self-defence in household and non-household offences differ?

Answer 49

• When it comes to the use of force which is disproportionate, the following is relevant:
  “In a household case, the jury are entitled to form the view, taking into account all the circumstances, that the degree of force used was either reasonable or not reasonable. Therefore the use of disproportionate force can be reasonable, but this will not necessarily be in every case.
  “in a non-household case, the position is different, as the degree of force cannot be regarded as reasonable if it was disproportionate.
• The difference between the two examples being that the non-householder case is focused on reasonableness exclusively. The householder can involve a distinction between what is disproportionate and what is reasonable.

Question 50

What does s43 of the crime and courts act 2013 (amending s79 of CJIA) say about disproportionate reactions in household and non household cases protection cases?

Answer 50

• “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.” This extends the powers of property owners who cannot use grossly disproportionate force or else they are guilty, but it will not be unreasonable on account of being disproportionate.
• The current state of the law is as follows “In a householder case, D is liable if, in the circumstances known to him, the jury find he used GROSSLY disproportionate force. He is also liable if the degree of force he used was disproportionate if and only if it was unreasonable.
• In a non-household case, D is liable if the amount of force used was in the jurys view unreasonable in the circumstances as he believed them to be”.
• In a household case, if the jury find that the response was not grossly disproportionate, they will focus on whether the degree of force was reasonable.

Question 51

Sum up of reasonableness and proportionality in self defence cases (household and non-household)

Answer 51

• if household, it may be disproportionate but not necessarily unreasonable
• if non-household, disproportionate will always be unreasonable.

Question 52

Keane 2010 facts and significance (provoking an attack for self-defence)

Answer 52

Keane 2010- D had verbally abused a woman, causing another to retaliate and D to cause V GBH in a fight, where V fell back and hit his head on the concrete. Where D provokes V to attack him, his self-defence plea will not automatically be successful, must be weighed against the reaction of V and the level of provocation by D.

Question 53

O’Grady facts and significance

Answer 53

• O’Grady 1987 QB 995: The defendant woke from a drunken stupor to find his equally drunk friend hitting him. In order to defend himself he retaliated with several blows and then returned to sleep. He awoke to find his friend dead. The defendant was convicted of manslaughter and appealed against conviction, relying on the defence of self-defence in the circumstances as he mistakenly believed them to be. The Court of Appeal dismissed the appeal and said that a mistake arising from voluntary intoxication could never be relied on in putting forward a defence, whatever the crime. Unnecessary to distinguish between basic and specific intent crimes.

Question 54

Oye 2014 facts and significance-

Answer 54

Ove 2014 1 WLR 3354: The appellant (O) appealed against his convictions of one count of inflicting grievous bodily harm contrary to the Offences against the Person Act 1861 s.20 and two counts of affray. O tried to escape, knocking a male police officer to the ground and punching a female officer, fracturing her jaw. As other officers arrived, he fought violently, lashing out and shrieking. Where a defendant suffering from an insane delusion that he was being attacked or threatened reacted violently, using force that was reasonable in the circumstances as he perceived them to be, he was not entitled to an acquittal based on self-defence. An insane person could not set the standards of reasonableness as to the degree of force used by reference to his own insanity.