Defences 2 (Self Defence, Infancy, Duress, Necessity Notes

• Self-Defence

  - Overlapping sources: common law + statute (often not specified: same rules apply).

  • common law: defend self or another ([Smith and Hogan]: ‘private defence’).

  • s3 Criminal Law Act 1967: prevention of crime. ([Smith and Hogan]: ‘public defence’).

  • s76 Criminal Justice and Immigration Act 2008 (CJIA): re-enacts common law principles.

  - When can self-defence be used?

  • 1. protection from physical attack (or threat of imminent attack) of self or another.

    • inc. another: R v Gladstone Williams [1984].

    • NOT protection of peace of mind: R v Bullerton [1992].

  • 2. protection of property: R v Hussey [1925].

    - 2-part test for self-defence: R v Owino [1996].

  • 1. trigger: d. honestly believes use of force was necessary.

  • 2. response: level of force used to repel attack was reasonable in circs. d. believed to exist.

  - Burden on prosecution: once raised by d., must be disproved.

  - All or nothing defence: R v Clegg [1995].

  • if successful: complete defence against all crimes.

  • no partial defence possible: slightest failing defence fails – e.g. if d. uses slightly excessive force.

  1. Trigger: d. honestly believed the use of force was necessary (subjective test).

  - Subjective test: d. judged on facts as he believed them, whether reasonable or not.

  • even if mistaken:

    • R v Gladstone Williams: d. attacked youth who was trying to stop a robbery, thinking robber being attacked CoA: self-defence – reasonableness only material to whether d. honestly believed force was necessary.

    • s76(3) + s76(4)(b)(i) CJIA: statutory footing.

  • but NOT mistake induced by voluntary intoxication: R v O’Connor [1991]; s76(5) CJIA.

  - Anticipatory self-defence (pre-emptive strike): allowed if threat imminent.

  • Devlin v Armstrong [1971]: [MacDermott LJ]: ‘to ward off/prevent an attack he honestly anticipated … must be imminent’.

  • A-G’s Ref (No.2 of 1983) [1984]: [Ld Lane CJ]: ‘against imminent apprehended attack’.

  • Beckford v R [1988]: [Ld Griffiths]: ‘circs. may justify a pre-emptive strike’.

  - No duty to retreat: d. can fight instead of run away – R v Bird [1985]: [Ld Diplock].

  - Self-defence by antagonist/aggressor: allowed in some circs.

  • R v Forrester [1992]: F. trespassing on W’s property, W. rushed at him CoA: self defence valid if W. used excessive force in attempting to remove him.

  • R v Rashford [2005]: CoA: dep. on circs – if person d. attacks not only defends self but goes on offensive.

    2. Response: level of force used was reasonable (objective test).

    - Objective test: but judged on facts as d. subjectively believed them – R v Owino [1996]; s76(6) CJIA.

    - D. acting in ‘heat of the moment’ – taken into account.

  • Palmer v R [1971, PC]: [Ld Morris]: if jury believe ‘in a moment of unexpected anguish’ d. did only what he ‘honestly and instinctively thought was necessary’.

  • A-G’s Ref. for N. Ireland (No. 1 of 1975) [1977]: [Ld Diplock]: ‘in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed’.

  • s76(7) CJIA: restates Palmer v R principle.

    Infancy

  • children under 10: conclusive presumption not capable of guilt – doli incapax.

    • s16 Children and Young Persons Act 1963.

  • children above 10: liability judged as adults – AR + MR (but different sentencing)

    • s34 Crime and Disorder Act 1998: previous rebuttable presumption abolished.

    • R v T [2008]: CoA: doli incapax defence never applies to children over 10.

  Duress by Threat

  - Duress by threat: d. commits criminal act as result of threat criminal conduct excused.

  • true defence: deal with after considering elements of offence.

  • R v Graham [1982; CoA]: defence first defined.

  • courts restrictive: otherwise v. wide defence + difficult to disprove.

  - Requirements: R v Hasan [2005; HoL]: [Ld Bingham]:

  • 1. threat of death or serious injury.

  • 2. against d., d’s immediate family, or someone for whom d. reasonably felt responsible.

  • 3. objective test: (a) d’s belief in threat reasonable; (b) d’s response reasonable.

  • 4. criminal offence directly caused by threats.

  • 5. no evasive action d. could reasonably have been expected to take.

  • 6. d. cannot rely on duress to which he has voluntarily laid himself open.

  - Murder: defence of duress NOT available.

  • not for principal offender – Abbott v R [1977; PC]; R v Howe & Others [1987; HoL].

  • not for accessory – R v Howe & Others.

  • not for attempted murder – R v Gotts [1992; HoL].

  - Burden on prosecution: once raised by d., must be disproved.

  Elements of Duress

  - 1. threat to cause death or serious personal injury.

  • not against property – M’Growther [1746]; DPP for NI v Lynch [1975].

  - 2. threat directed against d., immediate family, or someone for whom d. feels reasonably responsible.

  • can be stranger – R v Shayler [2001]: e.g. threat to detonate bomb.

  - 3. threat + response judged objectively.

  • (a) belief in threat must be reasonable (as well as genuine) – R v Graham; R v Hasan.

    • R v Graham: ‘good cause to fear’ (i.e. reasonable belief that threat would be carried out).

    • (R v Martin [2000]: CoA suggested honestly held unreasonable belief sufficient but effectively overruled by Hasan).

    • mistake: must be reasonable (unlike self-defence).

  • (b) would sober, reasonable person sharing d’s characteristics have responded as d. did?

    • d’s characteristics taken into account – R v Bowen [1977].

      • physical characteristics: age, sex, infirmities (e.g. brittle bones, haemophilia).

      • recognised psychological conditions.

      • NOT low IQ.

    • proportionality of response to threat: Abbott v R [1977]: [Ld Wilberforce]: ‘the more dreadful the circumstances … the heavier the evidential burden of an accused’.

  - 4. criminal offence directly caused by threats relied upon (‘nexus’ between threat + crime).

  • d. must be required by threat to commit specific crime charged – R v Cole [1994]: [S-Brown LJ].

    • facts: d. robbed 2 building societies because threatened by money lenders CoA: no defence.

    • if not: poss. plea of duress of circumstances (but: problem of immediacy) – see below.

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