Please enable JavaScript.

Coggle requires JavaScript to display documents.

Affirmative/General Defences, Intoxicated Defendants/Insane or delusional…

- - - - Exclusion on the basis of prior fault: Where D, either consciously or through negligence, places herself in a position where she requires a defence, the law is much less willing to recognise that defence
        
        The defence of duress, more than any other general defence, has applied this principle progressively strictly
        
        - Hasan [2005]:
        
        D committed burglary as a result of threats from X who was known to be violent
        
        D charged with aggravated burglary
        
        HoL: Held guilty of aggravated burglary, D's voluntary association with X undermined any appeal to duress
        
        Hassan confirms that duress will be excluded where D voluntarily associated with X in circumstances where a reasonable person would've foreseen a risk of future coercion
        
        We must consider 3 elements: Element 1: X's threat and demand
        
        When considering the threat and demand of X, three issues should be considered:
        
        1) the content of the threat
        
        X's threat must be of death or serious injury confirmed by HoL in Hassan
        
        Threat can be GBH offences against the person and threat to rape is sufficient
        
        ABH is not sufficient
        
        The extent to which D may rely on her mistaken beliefs were usefully clarified in: Safi [2003]
        
        D and others hijacked plane in Afghanistan and landing in England
        
        They claimed duress on basis that they were fleeing death or serious injury from the Taliban
        
        D charged with various offences including hijacking
        
        Held: appeal allowed – there is no need for objective evidence of a threat as long as D reasonably believed it existed.
        
        Safi clarifies that duress can be founded upon a mistaken belief. Note, however, that an honest belief will not be sufficient unless D’s belief is also reasonable: a reasonable person in D’s position would also have believed that there was a real threat of death or serious injury
        
        Who made the threat and demand and who are they directed at?
        
        Paradigm case of duress involves X threatening D with death or serious injury unless she commits a particular offence. Cases have emerged, however, to test this paradigm
        
        Source of the threats/demands, it is clear that these ay be directed at D via a third party, so no need to come directly from X. However, the threats/demands must still come from another party- they cannot originate from D herself
        
        Rodger and Rose [1998]:
        
        D broke out of prison following news that jail time of life sentence has increased
        
        D did this because he was depressed and suicidal and believed he would’ve committed if he didn’t escape
        
        D charged with offence of breaking prison
        
        Held: guilty of breaking prison. Duress wasn’t open to D because the threat wasn’t external from himself
        
        This is useful clarification that the threat/demand must come from another person
        
        Helps to understand duress as a concession to human frailty as opposed to individual frailty
        
        The content of the demand
        
        Duress by threats arises in its purest form where X makes an explicit demand that D should commit an offence (eg 'rob the bank or else'). However, a demand of criminal activity may also be vague and/or implicit (eg 'have the money by tomorrow or else') (may be able to rely on duress by circumstance)
        
        Cole [1994]:
        
        D robbed two buildings to repay debt
        
        Money lenders had hit D with bat and threatened him and his family unless he reapid the money, they didn't specify what he should do to get it
        
        Held: guilty of robbery
        
        Duress did not apply here because: a) D's offence was not specified by lenders; and b) there was a lack of imminence between the threat and D's offence
        
        Line taken in Cole is restrictive, suggesting that duress by threats will only apply where a single crime is clearly demanded
        
        Line perhaps softened in Ali [1995]:
        
        D, a heroin addict robbed a building
        
        D claimed that his dealer had threatened him about unpaid debts and told him to get money from robbing
        
        Held: guilty of robbery
        
        Duress did not apply because D's prior-fault in forming a relationship with X. Obiter: the level of specificiality as to the crime to be committed was sufficient for duress
        
        Element 2: D's response to the threat
        
        three main issues to be considered:
        
        a) the necessary causal link between X's threat/demand and D's offence:
        
        Duress only provided defence where D's offence was compelled by X's threats/demands
        
        D must have offended because of X's threat; that she would not have offended in its absence
        
        Valderrama-Vega [1985]:
        
        D involved in trafficking drugs, claimed he did so because of threats of serious harm from mafia because of financial difficulties and threats to expose homosexuality
        
        Held: guilty of trafficking drugs. The threats of serious injury had to be a sufficient cause, such that D wouldn't have offended without them but they need not be the sole cause
        
        Duress only applies where qualifying threat caused D to offend
        
        b) the imminence of threat, and whether D could have avoided committing the offence:
        
        D must have committed the offence because she has no other reasonable option to escape before the threat would be carried out
        
        Requirement of imminence
        
        Abdul-Hussain [1999]
        
        For the defence of duress if criminal law to apply, the threat needs to be imminent (will happen) but need not be immediate
        
        Hijacked plane who feared being sent back to Iraq and certain execution
        
        CA held: appeal allowed and defence of duress applied
        
        Rose LJ: Imminent peril of death serious injury needed to operate on the mind of the defendant, but it need not be immediate
        
        c) whether a reasonable person would act as D did:
        
        applies objective standard; requiring D to display a reasonable fortitude in resisting the threat and demand from X
        
        Objective reasonable fortitude test: Graham [1982]
        
        D lived with wife (V) and homosexual partner (X)
        
        D suffered from anxiety and took Valium
        
        X had been violent to D and V in the past
        
        X and D tricked V into returning home and X put a flex around V's neck and instructed D to pull
        
        D pulled out of fear of X and V died
        
        D charged with murder (at the time duress could be a defence to murder)
        
        Held: guilty of murder
        Test for duress asks if a reasonable and sober person would've acted as D did; the fact that D's steadfastness was weakened by alcohol and Valium is irrelevant
        
        A strictly objective test of steadfastness, however, can result in unfairness.
        
        While duress is not a concession to individual frailty, there are certain general characteristics, like age, that affects D's ability to resist threats and demands
        
        Interestingly, in contrast to the narrowing of other elements of duress, the courts have responded to this concern by gradually expanding the range of D's characteristics that can be considered when applying the reasonable steadfastness test
        
        Bowen [1996]:
        
        D obtained electrical goods on credit by deception
        
        D claimed to be acting under duress, having been threatened to obtain goods by other men
        
        Expert evidence showed D had an IQ of 68
        
        D charged with obtaining services by deception
        
        Held: guilty—the duress steadfastness test was based on a reasonable person of D's age and sex
- - - - Elements of duress by circumstance:
        
        Mirror duress by threats but useful to highlight key points how they apply in context of duress by circumstances
        
        Exclusions: Same exclusions apply in duress by threats: no defence to murder, attempted murder (AM)or treason offences
        
        Excluded also where circumstances were brought about by prior-fault
        
        Element 1: circumstantial threat and demand:
        
        Unlike duress by threats, no requirement to show that the threat and demand came from a person. There is also no need to show that a specific crime was demanded . Both elements applied restrictively within context of duress by threats, so duress by circumstances provide a useful aternative
        
        The threat must still be one of death or serious injury: duress by circumstances retains he high threshold from duress by threats and is not a simple balance of evils defence
        
        Element 2: D's response to the perceived threats
        
        Same as duress by threats
        
        D's offending must have been caused by the threats and demands of X; D must have made reasonable efforts to avoid offending; and D must have demonstrated reasonable steadfastness in resisting X's threats
- - - - F v West Berkshire Authority [1989]
        
        V (26 year old patient in psychiatric hospital) formed a sexual relationship with another patient
        
        Medical evidence demonstrated it would be bad if she got pregnant
        
        V's mother applied court declaration that sterilisation should be performed without V's consent (unable to consent)
        
        Held: declaration granted
        
        Doctor's actions would be protected by defence of necessity
        
        Duress by circumstances not available because the threat aka pregnancy doesn't meet threshold of death/serious injury
        
        Defence of necessity as to murder?- Dudley and Stephens [1884]
        
        D1 and D2 and V were shipwrecked and after days D1 and D2 decided to murder V and eat him to survive and 4 days after were rescued
        
        Held: guilty of murder- with a sentence of death- after sentences commuted to 6 months
        
        Lord Coleridge: 'Who is to be the judge of this sort of necessity?... the most unresisting was chosen... was it more necessary to kill him that the grown men... answer must me noff'
        
        Compare with Re A (children) [2000]
        
        J and M, conjoined twins, J stronger twin and J had potential for healthy life but M would die
        
        Doctors applied for declaration that separating the twins (killing M) wouldn't be unlawful
        
        Brooke LJ based decision on medical necessity and set out three requirements for the defence:
        
        a) the act is needed to avoid inevitable and irreparable evil
        b) no more should be done than is reasonably necessary for the purpose to be achieved
        c) the evil inflicted must not be disproportionate to the evil avoided.
        
        These requirements provide powerful points of reference for application of necessity. However, they remain vastly over-inclusive and should not be misunderstood as criteria for the defence: they are required, but no sufficient
        
        Re A confirms the presence of the necessity safety net, but the problematic nature of even the barest attempt at criteria also confirms that the safety net is imperfect (Rogers, 2001)
        
        Necessity and Homelessness:
        
        Southwark LBC v WIlliams [1971]:
        
        Squatting in empty council properties that council wasn't using
        
        They needed a home and it was necessary
        
        Courts said no, it's not a defence
        
        As a matter of policy, if any homeless person could simply occupy someone else's property and claim necessity then law and order would break down
        
        Lord Denning: 'The plea would be an excuse for all sorts of wrongdoing, so courts must take firm stand... they must refuse to admit plea of necessity to the hungry and homeless'
        
        The problem lies in setting limits on the defence.
        
        If we define necessity in greater detail, then we risk sacrificing its utility as a safety net that can apply to unexpected facts.
        
        However, if the only rule defining the offence is a balance of evils test, then the defence becomes potentially impossibly wide, allowing D to raise the defence whenever she believes she has acted for good reason.
        
        The reaction of the courts has been pragmatic: to resist further definition and restriction but to apply the defence reluctantly and always with its potential indeterminate dangers in mind.
        
        The words of Lord Denning and Edmund Davies LJ in Southwark London Borough v Williams provide a useful illustration of this, discussing the potential application of necessity where a homeless person steals food or enters another’s premises for shelter
- - - - Element 1: trigger- necessity for force:
        
        Was it necessary to use any force against V on the facts as D believed them to exist
        
        - Gladstone Williams [1984]:
        
        One can rely on self-defence if one made a mistake and needs to defend themselves or someone else
        
        V witnessed X rob woman on street, V caught X and knocked X to ground
        
        D witnessed second altercation and thought V was assaulting X so punched V to defend X
        - D charged with assault occasioning ABH
        
        CA: appeal allowed— necessity element must be based on an honest belief but there is no requirement of reasonable grounds
        
        Essential question: Was D's belief in the necessity of force honest?
        
        Now codified in S 76(3)- 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, and subsections (4) to (8) also apply in connection with deciding that question
        
        Is it necessary to use force preemptively? - Yes, accepted only when there is a specific and imminent threat
        
        Devlin v Armstrong [1971]
        
        MP orchestrated violent demonstrations against police
        
        NICA Held: apprehended danger must be sufficiently specific and imminent to warrant the force
        
        Beckford v the Queen [1988]
        
        A man who is about to be attacked does not need to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a preemptive strike. [Lord Grifiths]
        
        Important rule: if we will protect our rights, we need to be able to take measures and not just submit to an attack before we respond
        
        Element 2: Response—a reasonable degree of force:
        
        Degree of force used by D
        
        Jury question
        
        Where the degree of force used was reasonable, or proportionate
        
        Subjective approach: whether D believed the amount of force she used was reasonable, would be inappropriate
        
        Objective: what degree of force would have been used by a reasonable person in D's circumstances, would be equally inappropriate
        
        Mistaken and unreasonable defence: This is confirmed and codified within 76(3)-(4) of the Criminal Justice and Immigration Act (CIJA); this will be the case regardless of whether D's mistaken belief was reasonably or unreasonably held, as long as it was honestly held
        
        To whom must force be reasonable?
        
        Martin [2001]
        
        D lived in remote farmhouse and woken up by two people trying to burgle his premises
        
        He disturbed them and shot when they were escaping
        
        One killed and one seriously injured
        
        D charged with murder and serious offence against the person
        
        Held CA: appeal allowed—substituting murder for manslaughter
        
        Self-defence not satisfied because of excessive force used by D
        
        So, Martin provided a useful example of the limits of the public and private defence: use of force by D was clearly necessary both to protect himself and his property, and to prevent crime, but the force he used was excessive—thus defence failed
        
        It demonstrates the role that the partial defence can play where D's defensive force is excessive: in this case diminished responsibility (owing to medically recognised condition)
        
        The case also catalysed public and ultimately political concern about the operation of the defence in the context of householers who use force against unlawful intruders
        
        Special rule relating to "Householder" cases:
        
        76 (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
        
        The amendment made clear that 'grossly disproportionate' force will never be 'reasonable'- and so will always fail the second element of the defence
        
        Simple rule regarding proportionality: if what was done was disproportionate in the circumstances it cant be reasonable
        
        Ray [2017]:
        
        D at home with X, former partner of V, V and X had a violent relationship
        
        V arrived at X's house at night and threatened violence
        
        D tried to make V leave; following a violent struggle, fatally stabbed V
        
        D charged with murder and raised self-defence (as a householder), claiming he thought V had a weapon and intended to harm him and X
        
        Held: guilty of murder
        
        Ray thereby provides some useful clarification, but the application of the defence to householders reamins complex and problematic
        
        So what does the householder rule achieve?- Not much; we are told householders can't be reasonable when they are grossly disproportionate, but we're not told any other rule about householders—other than its for the jury to work out
- - - - De Than and Elvin (2014) set out, although Article 2 is not an absolute right, it only permits life to be taken when it is ‘absolutely necessary’ (McCann v UK (1996), with the ECtHR clarifying that this requires ‘good grounds’ in circumstances of self-defence.
        
        Arguably, D’s unreasonably mistaken belief, albeit an honest one, does not constitute good grounds.
        
        It should be highlighted that neither the ECtHR (Da Silva v UK (2016), nor any domestic court has yet found the public and private defence to be in breach of Article 2, and there are also good reasons for favouring the current subjective test over an objective alternative.
        
        However, it should also be acknowledged that a case of killing under an unreasonable mistaken belief has not yet made its way to the European Court, and so the potential for a breach to be found is still very much alive.