Covers the complete defences of Duress, Self-Defence and Necessity PDF

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Summary Sheets: LA104 – Complete Defences (2)Complete defences can be used where D has satisfied both AR and MR of offence and will lead to acquittal.Defences are crucial in protection people who aren’t BLAMEWORTHY, even though they have fulfilled the elements of the offence.3 types of COMPLETE DEFE...

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Summary Sheets: LA104 – Complete Defences (2) Complete defences can be used where D has satisfied both AR and MR of offence and will lead to acquittal. Defences are crucial in protection people who aren’t BLAMEWORTHY, even though they have fulfilled the elements of the offence. 3 types of COMPLETE DEFENCES: 1. Defence of DURESS 2. Defence of NECESSITY 3. SELF DEFENCE

1) Defence of Duress Common law defence which focuses on EXCUSING D’s conduct; conduct may not have been justified but the circumstances interfered with/forced them to not comply with the criminal law Important defence, as it can accommodate and excuse acts resulting from human frailty – law protects defendants who don’t display moral turpitude should not be blameworthy. N/A for following offences:  

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Treason Murder  William Blackstone argued that even if a person is acting under duress, they ought to die than act positively to kill another.  Problematic; not fair to hold Ds who act out of genuine fear criminally liable – acknowledged in R V WILSON [2007] Attempted Murder

Defence is also N/A in following circum.: 

Where D voluntarily associates with X, in circum. which a RP would recognise as coercive (necessary to discourage criminal association) – per R V HASAN [2005]

ELEMENT

EXPLANATION & CASELAW

1. X 3 key things to consider: THREATENED/DEMANDED a) CONTENT of threat SOMETHING OF D  Has to be a threat where D faces death or SBH; per R V HASAN [2005]  Following R V ASHLEY [2012] where X threatens to rape D it will = valid threat.  N/A where threat is in reality to property, but D subjectively believes it is to their person.  Per R V SAFI [2003], D MUST REASONABLY (obj.) that they are facing death/SBH.

2. D’s RESPONSE to the threat

b) Who MADE the threat?  Can come from X or a 3rd party.  Threat can include death/SBH directed towards others; per R V HASAN [2005] ‘others’ includes anyone: o In D’s immediate family. o Who is close to D. o Someone D might be responsible for – should be interpreted literally.  Threat cannot come internally from D – per R V ROGERS & ROSE [1998] o After hearing their sentences had been extended, Ds broke out of prison; wanted to avoid threat of death as they were both suicidal. o Held that allowing appeal wouldn’t be justified or in the public interest to allow duress to be applied because of D’s personal characteristic/vulnerability. c) CONTENT of demand  X’s demand must contain commission of offence otherwise DofD N/A – confirmed in R V COLE [1994].  Law has been softened post R V ALI [1995], where it was held that all that is required is that X explicitly demanded the commission of AN offence – needn’t be specific. 3 key issues: a) Has to be a causal link between the threat against D and the commission of offence.  BUT FOR X’s threat to inflict death/SBH on D or another person, D would not have committed offence.  Per R V VALDERRAMA-VEGA [1985], incorrect to apply DofD where sole threat to D was SBH; threat of SBH needs to be sufficient cause for DofD but needn’t be SOLE cause – provides latitude for influence of other non-fatal threats. b) Imminence of threat and opportunities to escape threat  D must have committed offence as there was no way to escape it; i.e., threat was imminent.  Generously interpreted – R V HUDSON & TAYLOR [1971] o D1 & D2 committed perjury; D1 had been threatened with being cut up if she identified X. o Held that threat of death was IMMINENT & OP.CAUSE of D’s offence – not undermined by failure to go to police, as D believed they wouldn’t be able to help  Test is whether D HAD AN EFFECTIVE WAY TO ESCAPE THREAT – has been narrowly interpreted post-HASAN [2005]. c) Reasonable Steadfastness test  D will be expected to display REASONABLE FORTITUDE in resisting D’s

threat.  Concerns HUMAN FRAILTY  Key Case: R V GRAHAM [1982] o D took Valium pills which made him susceptible to bullying; was manipulated by X to kill V. o PRINCIPLE (Appeal Dismissed)  Even where a person is weakened by intoxicants, a R&S person wouldn’t have acted the same way.  Confirmed that DofD only available if the will of a R&S would have been overborne like D’s.  Post R V BOWEN [1996], test is more accommodating of D’s: o Sex o Age o Physical disabilities o Mental illness/psychiatric conditions

Defence of Duress BY CIRCUMSTANCES Defence exists to provide a defence where there is no direct threat and/or recognised demand from another party. However the circumstances are as such that they create an equivalent overbearing of D’s will. Originally recognised at law in the case of R V WILLER [1986]   

D drove car on pavement to escape a gang of youths who were intend on doing serious injury to him and his passenger. After being charged with reckless driving, his attempt to use the Defence of Necessity was refused. Held at Appeal that D had the Defence of Duress

Duress by Circumstances N/A where D has been charged with: a) b) c) d)

Murder Attempted Murder Treason Where there was prior fault – e.g. they put themselves in a position where the defence would need to be used.

ELEMENT 1. Circumstantial Threat &

EXPLANATION & CASELAW D must have reasonably believed that the circumstances posed a threat of death

Demand

or serious injury which compelled her to commit the offence. In contrast to Duress by Threats there is no requirement to show that the threat came from a person nor that the threat demanded the commission of a specific crime. Similarly to duress by threats the threat must be of DEATH OR SERIOUS INJURY; where D cannot show the circum. threatened him to the point where he had to commit the crime the defence is N/A – instead will have to try the defence of necessity. Further the threat itself cannot come from D – principle from R V RODGER AND ROSE is applicable.

2. D’S RESPONSE TO THE PERCIEVED THREAT

Exemplar Case: R V QUAYLE [2005]  D was charged with drug offences in almost all the cases after possessing, importing and supplying cannabis for pain-relieving purposes.  Rejected DbyC, since the threat of additional pain by not taking the cannabis was not sufficient to = threat of death/serious injury. Additionally, the use of drugs was purely internal to D and therefore RODGER AND ROSE applied. D must have shown reasonable steadfastness in responding to the threats and should have only committed the offence because her will was overborne. Mirrors requirement from DbyT. Crucial that:  D’s offence must have been caused by the threats and demands of X  D must have made reasonable efforts to avoid offending  D must have demonstrated reasonable steadfastness in resisting threats. Difficulty is in identifying the beginning and end of D’s compelled conduct

2) Defence of Necessity Can be described as a LAST RESORT defence, where D’s commission of offence was JUSTIFIED. As a justiciary defence, it will be recognised that D’s breach of the criminal law was the better of the 2 evils available and is often times related to HARM REDUCTION. Can be both UNDER and OVER inclusive; based on the moral intuitions people have. Unlike with DofD, for D to use DofN there needn’t be any threat of death or SBH. Per F V WEST BERKSHIRE AUTHORITY

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Court held that DofN permitted to sterilise V (who was engaged in a sexual relationship despite being mentally ill), even though D had bypassed V’s consent – justified procedure as it was necessary to prevent pregnancy for V as it could damage health.

Per SOUTHWARK LBC C WILLIAMS  

Court held that D couldn’t use DofN to justify stealing bread from V, as even though D was hungry permitting it would be ‘tantamount to anarchy’. Even though conduct wasn’t blameworthy, the defence couldn’t be applied to the point where it might lead to a slippery slope.

Necessity and murder; defence has been reserved for exceptional cases where it has been morally permitted rather than being applied in a wholesale manner; courts have usually drawn distinction: Per R V DUDLEY & STEPHENS, the killing of V (cabin boy) by his ship-wrecked crew mates in order to survive was not justified; no reason to choose the cabin boy in particular. In RE A (Children) however, the Court permitted the murder of A in order for B to survive   

A and B were conjoined twins; A was healthy and had the potential to live a normal life but B was the weaker twin whose life was dependant on A. By doing nothing both A & B would die; however, by acting positively to separate A from B, A would survive but B would die as he was reliant on A. Lord Justice Brooke set out following points of reference for DofN to apply for murder: a) Act is needed to avoid an INEVITABLE and IRREPERABLE EVIL. b) For purpose to be achieved no more should be done than what is REASONABLY NECC. c) Evil inflicted shouldn’t be DISPROPORTIONATE to the evil avoided

3) Defence of Self Defence Comes in 2 forms:  

PRIVATE DEFENCE – developed at common law where D used force against V to protect themselves against harm to themselves or their property. PUBLIC DEFENCE – covered under s.3 of the CRIMINAL LAW ACT 1967, where a person can use force against another where they either PREVENT CRIME or ASSIST LAWFUL ARREST.

Self-defence now contained within s.76 of the CRIMINAL JUSTICE ACT 2008; serves as justificatory defence where V’s conduct against D justified a loss of their right to life. Different views about when V looses their right not to be killed: a) Culpable Responsible View: V only looses their right to not be killed where they culpably pose threat to D.

b) Responsibility View: V may only loose their right to not be killed where they are RESPONSIBLE but not culpable. c) Threat View: V may only loose their right to not be killed where they are neither responsible or culpable – preferred view following RE A (Children) SD only applies where D used force against V; however it will not be legitimate if their voluntary association with V meant it was RF that coercion would be present. Per R V RASHFORD [2005], D can’t rely on the SD where they manipulate V into attacking D. For D to use defence of self-defence they must fulfil following requirements: ELEMENT 1. There must have been a TRIGGER

EXPLANATION & CASELAW Concerns the question of whether D’s conduct was JUSTIFIED; were the circum. of the situation as such that use of force was necessary? Subj. requirement; can be satisfied even where the belief was WRONG or UNREASONABLE – confirmed in R V GLADSTONE WILLIAMS [1984]  D assaulted V to defend X, who he thought was being attacked.  PRINCIPLE: CofA held that belief that UofF was necc. Should be rooted in an HONEST BELIEF – codified in the CRIMINAL JUSTICE AND IMMIGRATION ACT 2008. Per DEVLIN V ARMSTRONG [1957], SD is permitted where D was preventing attack; however threat from V must be immanent.  ‘Immanent’ narrowly interpreted to avoid permitting aggressive force; could exclude women suffering from BWS from relying on defence. No Duty imposed on D to RETREAT – where D stays in location where he knows there is a risk of attack but chooses to stay it won’t impact his reliance on defence. Additionally, s.76(6)(a) of the CJIA 2008 a WILLINGNESS TO RETREAT will be treated as evidence in D’s favour. SD can even be used where D used it in response to a lawful act. Per BAYER V DPP [2003] SD can be used validly where D is attacked by V who is insane or a child. Additionally, even where D’s subj. belief as to the threat is MISTAKEN, SD won’t be undermined – per R V GLADSTONE WILLIAMS [1984]

2. Was D’s response REASONABLE

However following R V GEORGE DADSON [1850], D cannot rely on facts which were unknown to him at the time of using defensive force in order to justify UofF.  D employed to guard wood from being stolen; spotted V who was a thief and was in the process of stealing wood (unknown to D). Jury has to consider whether D’s UofF was REASONABLE – even where UofF > threat that D faced then SD can be used successfully. Law follows R V OWINO [1996]; jury has to be asked: Was the UofF REASONABLE BASED ON

The subj. facts as D BELIEVED them to be? Both and obj. and subj. test. Jury shouldn’t consider the DEGREE OF HARM – confirmed in R V KEANE [2010] However, courts won’t permit an EXCESSIVE use of force, even where the use of force may have been necessary – per R V MARTIN [2001] Law has also recognised exceptional classes of Ds where the SD will be applied in a more liberal manner: a) Householders  Decision in R V MARTIN [2001] caused public and media outcry; Government pressured into offering greater protection latitude to householders who use SD to defend property.  CJIA 2008 now includes provision where it the use of force by a householder will be reasonable, so long as it was GROSSLY DISPROPORTIONATE to the threat faced.  Problematic; same leeway is not afforded to defendants who use SD outside of the bounds of their property. b) Intoxicated defendants  Per R V HATTON [2005], where D pleads to making mistake in respect of their honest belief that V posed threat, which is the result of VOLUNTARY INTOXICATION it is N/A.  Both based in policy and principle  Principle; Where D put himself in a position where his mental state would prevent him from holding an HONEST BELIEF, S-D should be N/A.  Policy; Law should not afford the same level of protection to those who are intoxicated by their own accord as it does to sober defendants....