DEFENCES

There are generally two categories of Defenses:

1. Affirmative Defenses
 (where although the actus reus & mens of crime are proved and acknowledged by the
defendant, the Defendant seeks to justify or excuse what happened)
2. Failure of Proof Defenses
 (where it is argued that one of the elements of crime is lacking)

FAILURE OF PROOF DEFENCES

 These are defenses where the Defendant argues lack of proof of one of the elements of the offence.
 This can either be a lack of proof of actus reus, or even mens rea.

These defenses include: (i) Intoxication (ii) Automatism (iii) Insanity (iv) Consent

INTOXCIATION
 intoxication usually relates to alcohol and dangerous drugs e.g. LSD
 While relying on intoxication, it is argued that there was no mens rea for committing the crime.
 This defense does not excuse the wrong doing, it only adds to the evidence that D. lacked mens rea.

(R v Lipman)

D took LSD, killed woman by stuffing a bedsheet in her mouth because he thought she was a [Link]
was convicted of manslaughter.

Difference in liability

 Basic intent crime- crimes of basic intent are those for which the mens rea element can be
satisfied by recklessness, negligence, or strict liability, Basic intent refers to offences where
either intention or recklessness will satisfy mens rea.
 Specific intent crime- offences of specific intent are those which have intention OR Knowledge
as their mens rea.
 Strict liability crimes- offenses where the prosecution only needs to prove the prohibited act (actus
reus) occurred, Mens rea is not required to be proved

Voluntary Not a defense Involuntary

Intoxication to crimes of Intoxication
strict liability
Acts as a defense to specific intent Acts a defense of both specific
crimes only (e.g murder). This is not and basic intent crimes.
a defense to basic intent crimes
(R v Blakely & Sutton)

Driving under the influence while your drink has been spiked and you were unaware of it is not a valid
defense. Drunk driving is a strict liability offence, and hence a liability here was established.

(R v Kingston)

D engaged in sexual assault on the V under the influence of drugs secretly given by X.A conviction was
upheld, because at this point D was aware of what he was doing and he intended to do it.

A question to ask while establishing liability: Was the effect of intoxication to prevent D from forming
mens rea or to remove D's inhibition or otherwise inflame D's anger and desires?

Examples of voluntary intoxication

(R v Beard)

D raped a schoolgirl while he was drunk, and in the process to stop her from screaming he put his hand
on her mouth and she died of suffocation. Prosecution could not prove specific intent to commit murder,
which is why he was held liable for manslaughter.

Lord Birkenhead:

Previously voluntary intoxication was never a defense to murder. However, while intoxicated forming
specific mens rea is difficult, which is why in cases of murder, if the jury is satisfied then the D. ought to
be convicted of homicide without malice aforethought.

R v Allen

The key principle established in the case of "R v Allen" regarding intoxication is that voluntary
intoxication, even if the defendant was unaware of the strength of the alcohol they consumed,
is still considered voluntary and cannot be used as a defense to negate the mens rea of a crime.
the courts said that u had knowledge and hence still be liable and you cannot rely on
involuntary intoxication)

Dutch Courage Crimes

  These are crimes where D voluntarily intoxicates himself in order to commit a specific crime.
 Notes that in such cases, D is not allowed to rely on the defense of intoxication.

(AG of N.I. v Gallaghar)

D wanted to kill wife. He intoxicated himself to get courage and went ahead with the crime. This in itself
was enough to prove intention.

(R v Majewski)- important case, mention it every time while discussing intoxication

Facts: D involved in pub brawl and assaulted the landlord, customers, and police officers. His defense
was that he committed the offences whilst under the effects of alcohol and drugs.

Held: Hol stated, that If D is charged w/ a specific intent crime and did not form the mens rea, he is not
guilty of that crime (but liability may be reduced). Voluntary intoxication is not a defense to basic crimes.

R v Majewski- SUMMARY OF THE LAW

1. Gives us the difference between voluntary and involuntary intoxication.

2. Voluntary intoxication: Intoxicant taken for any reason other than a medicinal purpose.
KNOWING it may be an intoxicant.
3. Involuntary intoxication:
(i) Taken under medicinal supervision
(ii) Secretly administered without knowledge
(iii) Where A takes drug but mistakes its properties

(R v Hardie)

Facts: Defendant and his girlfriend got into an argument, whereby girlfriend suggested D take some
valium to calm down. The valium effected the D too much, and he set his girlfriend's wardrobe on fire.
case of criminal damage against him was brought.

Held: The conviction was quashed because this was considered involuntary intoxication.

Intoxicated Mistakes as a Defense

If D makes a mistake when voluntarily intoxicated (when it's likely that mistakes will be made) we must
establish the nature of the mistake to see if D has a defense. It's a matter of public policy to limit
defenses where D is drunk.

(Jaggard v Dickinson) [1981]

D broke 2 windows and damaged a curtain in V's house b/c D, due to voluntary intoxication, mistakenly
believed she was damaged X's property (a friend), and that X would have consented to D doing so.

Held: It was clear from s 5(2)(a) Criminal Damage Act (1971) that if the belief was honestly held it was
irrelevant that it was unreasonable. Though D wouldn't have made the mistake had she been sober, s 5
CDA 1971 refers expressly to 'belief', and b/c D had that belief, she had a lawful excuse.
 Intoxicated mistake in relation to Self Defense

 S. 76(4) (b) of Criminal Justice and Immigration Act 2008

 A defendant cannot rely on mistaken belief for purposes of self-defense in voluntary intoxication.

(R v O'Grady.)

D and V drinking together all day, after which they passed out. D woke up to think V was attacking him,
so D killed V. It was held that self-defense will not be available due to voluntary intoxication.

(R v O'Connor)

 Voluntary intoxication negates the belief that force was required to defend oneself.
 Intoxication can only be used to negate mens rea, NOT support the defense of self-defense.

(R v Taj)

Alcohol abuse led to psychosis due to which D thought V was a terrorist and killed him. Although not
intoxicated at the time, the defense of intoxication was still not available in reference to cases of SD

(R v Oye)

Facts: Person in a restaurant was acting in an odd manner. Resisted arrest, punched a police officer, and
argued that the staff is evil. He maintained that he had super powers and was trying to protect the world
against the evil. Track record: Cannabis

Held: He used more than reasonable force and hence could not be categorized as self-defense, and this
intoxicated mistaken belief would not be excused either.

AUTOMATISM AND INSANITY

1. INTRODUCTION
A form of failure of proof defense, and to be successful a defendant can argue that the elements of the
offense either actus Reus or Mens rea or both were absent and the defendant’s conduct was involuntary.
In criminal law no liability can be established upon a person who is acting involuntarily and liability is
only established for a voluntary conduct at part of the defendant. Defense of Automatism can also be
operational in crimes of strict liability (Hill v Baxter).Lord Denning's statement in Bratty v AG describes
general idea of automatism which is that there must be a complete loss of voluntary control ; No act is
punishable if it is done involuntarily and an involuntary act in this context - means an act which is
done by the muscles without any control by the mind such as a spasm, a reflex or a convulsion; or an
act done by a person who is not conscious of what he is doing, such as an act done whilst suffering
from concussion, or whilst sleepwalking. (give summary of essay)

2. Differentiate between physical and mental involuntariness

The involuntary act of defendant can be categorized into two forms which can be of physical and mental.
Firstly, Physical involuntariness refers to the when the defendant commits a crime due to lack of physical
control and hence no liability is established where the defendant acts involuntarily (R v Mitchell).
Moreover, it is important to note that when a defendant is driving a car, he must show that defendant
lost control of his actions due to reasons for example a blackout rather than any factor such as poor
maintenance (Burns v Bidder). Mental involuntariness is where there is loss of mental control and hence
a crime is committed.

3. AUTOMATISM

A further distinction can be drawn between non-insane automatism (automatism) and insane
automatism (insanity). One of the major differences between these two is the reason behind the
involuntary conduct of the defendant, in non-insane automatism defendant acts due to external factor
rather than an internal mental factor or illness which is insane automatism. This is clarified by statement
of Lawton LJ in (R v Quick) which described automatism as ‘a malfunctioning of the mind of transitory
effect, caused by the application to the body of some external factor, such as violence, drugs, including
an aesthetics, alcohol and hypnotic influences. Hence here the nurse who acted involuntarily due to
intake of insulin was allowed the defense of automatism. Moreover, it is important to note that
emotional stress is not counted as an external factor and the defense of automatism doesn’t apply to
cases involving a blackout due to that. (R v Rabey, persuasive authority and not a binding precedent).
This reflects that not every mental disturbance can support the defense of automatism and the trigger
must be exceptional. On the other hand, being blacked out due to PTSD from being raped is an external
factor (R v T).

4. Automatism and Strict liability offenses + Self Induced Automatism

The defense of automatism is allowed in crimes of strict liability as well and the specific reason for that is
that defense of automatism can negate not only mens rea but actus reus of the offense as well. (Burns v
Bidder). However, due to public policy reasons and avoiding floodgates the courts are restricted to allow
the defendant to plead the defense of automatism in such scenarios. A relevant example here is that of
Neal v Reynolds where court held that since Defendant had full control of the car, he should have taken
reasonable precaution. Furthermore, there have been limitations imposed on the use of this defense in
cases involving self-induced automatism but this only applies where for example defendant was
voluntarily intoxicated (R v Lipman). An exception to the rule regarding self-induced automatism lies in
the case of R v Hardie where it was decided that in cases where a drug is consumed voluntarily and is
not known for causing aggressive behavior, the defense of automatism can be successful if it caused
defendant to cause damage.

5. Insanity + distinction with automatism

On the contrary, the defense of insanity is distinctive in may ways. Firstly, is due to the special verdict
given by the judge which is that of by reason of insanity and if raised successfully will not lead to
unqualified acquittal. This differs in comparison to automatism where there is a complete acquittal.
Secondly, as compared to automatism, here the defense is successful if the defendant’s state of mind
that caused him to act involuntarily was due to any internal reason or in another words a disease of
mind. The clear definition of insanity can be provided by The M’Naghten Rules which states that for a
person to be considered insane there are 3 requirements; there must be a disease of mind that secondly
causes defect of reason and lastly defect of cognition.

6. Disease of mind

Disease of mind does not mean the same as in medical terminology. It simply means that when due to
any disease (not particularly a disease of brain), causes the brain of the defendant to malfunction, this
makes it a wider approach. Moreover, it covers any sort of internal disorder which affects the mind and
therefore can cause the defendant to act violently such as an epilepsy as in the case of (R v Sullivan and
R v Bratty). The disease of mind can occur due to any physical condition such as hardening of arteries
which caused an involuntary conduct of the defendant (R v Kemp). Distinguishing between external and
internal factors can be sometimes confusing and a case example is that of R v Hennessy where it was
held that being in a hyperglycemic state was due to internal illness of diabetes and not the failure to take
insulin which would be external factor and hence correct defense here was that of insanity. Initially
sleepwalking was thought to be an external factor however, the case of R v Burgess ruled that it was
rather an internal mental condition and therefore appropriate defense was that of insanity.

7. Defect of reason and cognition

Secondly, defect of reason must be caused due to defect of mind. Hence it is essential to prove that due
to the internal mental illness defendant’s ability to think and act rationally had been impaired due to
that. This defect of reason must cause either of the following two consequences; firstly, defendant did
not know the nature and quality of his act; which means he does not know what he is doing physically
for example due to a blackout (R v Kemp). Examples also involve that of a man cutting a woman’s throat
thinking it was rather a loaf of bread (Kenny) and killing a person under the delusion of him being a jar
(Stephen). Secondly, a defendant can still be acting insane if although he knew what he was doing but he
did not consider it to be legally wrong. In R v Windle since defendant knew he might be considered liable
due to his actions being wrong the defense of insanity failed.

8. Similarities + usefulness of the defenses

The defenses of Automatism and Insanity both have some common ground between the two. Firstly,
both defenses are a form of failure of proof defenses, they operate as excuses and there is no conviction
if defense is successful. Secondly, they rely on the mental condition of the defendant which reduces
capacity and results in involuntary conduct. Thirdly, for both of the defenses to be successful medical
evidence is required to show that there was a recognized mental illness. Moreover, both play a
significant role in negating mens rea since it is not present where there is abnormality of mental
functioning. Both are complete offenses rather than partial such as that of diminished responsibility and
leads to a full acquittal. Lastly, these defenses ensure just and fair convictions and acquits defendants
who genuinely lack the mental state of mind required for the offense and which leads to lack of control
of their actions and leads them to act involuntarily.

9. Issues with the defenses + reforms

However, there are criticisms to the operation of these defenses. The M’Naghten rules are said to be
inconsistent ad outdated as compared to present day’s medical terminology and thus one of the reforms
suggested for these defenses is to replace these rules with a specific legal test which is clearer and more
updated. Secondly, there is sometimes uncertainty relating to whether a factor that caused the mental
illness was internal and external, and this leads to unpredictability in law and thus it has been suggested
that this is an artificial distinction and must be removed, rather focus should be on the loss of control
regardless of internal or external factors. Furthermore, consequences of a successful defense of insanity
can be significant for example hospital detention and carry a social stigma of insanity and it has been
argued that the label of being insane is sometimes inappropriate especially for cases involving epilepsy
or diabetes. Lastly, the requirement that there be a complete loss of self-control is narrow and very
harsh as it would deny a defense to a person who had only a partial awareness of what was happening
to him.

Consent is also a form of non-failure defenses +covered in earlier lectures.

AFFIRMATIVE DEFENSES

SELF-DEFENSE
 Study of private and public (self) Defense under The criminal Justice and Immigration Act 2008
 criminal law permits the use of reasonable force for the purpose of public or private defense.

PUBLIC DEFENSE

 S. 3. Criminal Law Act 1967 provides that a person may use such force as is reasonable in the
circumstances in the prevention of crime, or in effecting or existing in the lawful arrest of offenders
or suspected offenders or of persons unlawfully at large.

(R v Wilkinson)

Where taxi driver forcefully dropped passenger back to where he had picked her up from when she told
him she does not intend to pay. This amounted to false imprisonment. The argument that it was "self-
defense" as he was trying to "prevent V from committing a crime" was not accepted, because this act
was more retaliatory than defensive.

PRIVATE DEFENSE

At common law the defense of self-defense operates in three spheres. It allows a person to use
reasonable force to:

a) Defend himself from an attack.

b) Prevent an attack on another person, e.g. R v Rose (where the defendant who had shot dead his
father whilst the latter was launching a murderous attack on the defendant's mother, was acquitted
of murder on the grounds of self-defense)
c) Defend his property;

(R v Demario Williams)

where D had killed another in trying to recover his property, the defense was not allowed because of
similar reasons as seen in Wilkinson). The law does allow reasonable force to prevent crime — but not
to punish, and not in a way that causes death when the threat has passed.

The Criminal Justice and Immigration Act 2008

 The Criminal Justice and Immigration Act 2008 has put the common law principles into statutory
looting,
 s.76 Criminal Justice and Immigration Act 2008 as amended by the Crime and Courts Act 2013 (s.43)
puts the common law of reasonable force on a statutory footing, S76 Is a consolidating section. It
purpose is merely to clarify the existing law, It does not seek to change the common law as is made
clear in S76 (9)

Reasonable force

The requirements for reasonable force can be found in s.76(3), (4) and (5).

 s.70(3) states that in order to determine whether the force used by D in self-defense is reasonable
must be done in accordance to the circumstances as D believed them to be (meaning it is decided
subjectively.)
 s.76(4) states that reasonableness Is determined on the basis that D. genuinely held a beleif
regarding the circumstance
 It is important to note that as long as D. genuinely hold the belief, it doesn't matter whether or not it
was a mistaken belief, as long as it was a reasonable one:
 s.76(5) states that D. will not be allowed to rely on mistaken belief if the result of voluntary
Intoxication (R v O'Connor) (R v Ta)- mistaken belief when you are voluntary intoxicated doesn’t’
allow you to plead successful self-defense.

Use of force must be necessary:

The use of force will not be reasonable if it is not immediately necessary (on the facts as D believed them
to be). If, therefore, there are other defense options available, for example locking a door to prevent the
Intrusion of a burglar, the use of force may not be reasonable.

No duty of retreat:

(R v Field)

D was told that V was coming round to attack him. D remained where he was and, in repelling V's attack,
killed him. The prosecution case was that D's use of force was unreasonable since he had the
opportunity to retreat and seek police protection. The Court of Appeal rejected this argument and
allowed the defense. If someone is coming to shoot you and you shoot back it is reasonable force and
will allow self defense since its proportionate, however, if the defendant came to punch and victim
shoots him this will not be a reasonable force.

Provoking an attack:

(R v Rashford)

D mounted a revenge attack on V. V himself went on the attack, along with some friends. D then sought
to defend himself and killed V. The Court of Appeal stated that the fact that D provoked the attack did
not exclude his use of the defense. The defense was available so long as V's retaliation was of a nature to
Justify the use of force in self-defense and if the violence used was not disproportionate to the
perceived threat.

Pre-emptive Strike

However, a pre-emptive strike is not disproportionate and the defense of self-defense will be allowed.

(R v Beckford)

"A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first
shot; circumstances may justify a pre-emptive strike." (Lord Griffith)

How is reasonable force decided?

This is decided objectively as seen under s.76(6)

(R v Palmer)

S.76(7) goes on to establish for us the considerations to take into account while assessing "unreasonable
force". In simple words, D is not expected, in an anxious state and in the face of aggression by another,
'to weigh to a nicety the exact measure of any necessary action'.

In cases of householders:
The house holders to give them extra protection if say they overreact in the terror of discovering a
burglar, as the question is not whether the degree of force is disproportionate but grossly
disproportionate.

R v Martin(Anthony)

A householder will be acting disproportionately if he shoots to kill. In this case, Martin was also suffering
from paranoid schizophrenia, which is why based on diminished responsibility (in addition to self-
defense) his murder conviction dropped down to manslaughter.

(R v Yaman)

where D. attacked a court-appointed locksmith with a hammer, it was held that he was acting
disproportionately.

The change in Law

• Section 43 of the Crime and Courts Act 2013 adds a new subs.(5A) to s.76 of the CJIA 2008. The
effect of subs.(5A) Is to apply a more flexible standard of reasonableness of reaction to the
householder
• The effect of subs.(5A) is that, if householders act honestly and instinctively to protect themselves or
their family from intruders using force that was reasonable in the circumstances as they saw them,
they will not necessarily be guilty of an offence even if the level of force turns out to have been
disproportionate in those circumstances.

(R (Collins) v The Secretary of State for Justice)

Where D. put a burglar in a headlock that caused life-changing injuries, the amended law could be relied
upon. It was a matter for the Jury to decide whether or not the D. had used disproportionate force.
(affirmed in R v Ray)

NECESSITY
When you are excused from crime due to some emergency. The concept of necessity is described in;

Perka v Queen
non-compliance with law is excused by an emergency or justified by the pursuit of some greater good.

Necessity as an excuse

The leading case on the topic is R v Dudley and Stephens

Here the court rejected any defense of necessity which would permit the killing of the innocent to save
one's own skin. As a result, two shipwrecked sailors who killed and ate the cabin boy after days adrift in
an open boat had no answer to a charge of murder.

Courts are reluctant to provide this defense for two reasons:

1. It would introduce the potential for individual rights to be overridden by collective interests.
2. It would subvert the rule of law since it allows individuals to ignore their legal duty in pursuit of
some supposedly greater good.

Buckoke v. GLC
It was no answer to a charge of jumping a red traffic light that the driver was in a fire engine answering
an emergency.
Southwark LBC v. Willlams:
It was no answer to trespass that the trespassers were homeless and the building unoccupied. Lord
Denning was of the opinion that if the defense was allowed, floodgates would be opened and some
people might also imagine that they were in need or might invent a need so as to gain entry.

There are, however, several requirements that must be met in order for the defendant to use
necessity as a defense:
a. The first requirement is that the defendant must reasonably believe that an actual threat exists.
b. Second, the defendant must reasonably believe that the threat he is trying to prevent is greater than
the damage that will result from his actions.
c. Third, the threatened harm that the defendant is trying to prevent with his actions must be
imminent.
d. Fourth, the defendant can only use the necessity defense if there was no other, less harmful way to
avoid the threatened danger.
e. Finally, the defendant will only be able to use the defense if the defendant himself was not at fault in
creating the situation that made it necessary to commit his crime.

Necessity as a justification

The justificatory form of necessity has been accepted in one restricted context- medical intervention.

Re F: F

was a 36-year-old woman. She had a serious mental disability caused by an infection when she was a
baby. She had been a voluntary in patient in a mental hospital since the age of 14. She had the verbal
capacity of a child of two and the mental capacity of a child of 4. She developed a sexual relationship
with a fellow patient. Her mother and medical staff at the hospital were concerned that she would not
cope with pregnancy and child birth and would not be able to raise a child herself. Other methods of
contraceptives were not practical for her. They sought a declaration that it would be lawful for her to be
sterilized. F was incapable of giving valid consent since she did not appreciate the implications of the
operation. The declaration was granted. It would be lawful for the doctors to operate without her
consent.
St. George's Health care NHS Trust v 5
The doctors had acted unlawfully by performing the emergency caesarean on the woman without her
consent.
Re A:
According to Sir James Stephen, there are three necessary requirements for the application of the
doctrine of necessity:
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;
3. the evil inflicted must not be disproportionate to the evil avoided.
DURESS
To be excused from a crime due to the circumstances which cause pressure on D to commit a crime

Duress by Threat

Here the defendant is, coerced into committing an unlawful act by the threats of a wrongdoer. The
House of Lords has elaborated the principles above in R v Hasan, where the court had convicted the
defendant for aggravated burglary rejecting his defense of duress. Lord Bingham had placed restrictions
on Its application.

1) The threat or danger must be of death or serious injury not severe pains

Threats to reveal sensitive information alone are insufficient to raise the defense.

* Rv. Valderama Roke

The threat of exposing defendant's homosexuality was not enough to raise the defense.

R v Quayle:
Duress of circumstances was not an answer to the conviction under the Misuse of Drugs Act for a
defendant who claimed that he had consumed cannabis to combat severe neurological pain following a
leg amputation.
R v Dao:
3 defendants were locked in a place and forced to grow and cultivate cannabls. They appealed against
conviction basing their argument on saying that false imprisonment - hence duress. The courts however,
refused this argument, and said only false imprisonment is not enough to be equivalent to duress
without accompanying threats of death or serious injury.
Qualification to this restriction:
 R v A:

A credible threat of rape could ground the defense of duress or duress of circumstances.

2) The threat must be directed against the defendant, his or her Immediate family
or someone close to the defendant.

Hurley v Murray; partner

Ortiz; spouse or family

Hasan; only close people with personal relations to be regarded

R v Shayler

Shayler was a member of MIS and had signed a declaration under the Official Secrets Act. In breach of
this he had provided journalists with 30 documents which he had obtained through his position and
which related to national intelligence and security issues. During a case management hearing the judge
ruled that the defense of duress of circumstances was not available to Shayler. He appealed against this
ruling contending that the disclosure was necessary to safeguard members of the public. His appeal was
dismissed. Whilst the defense of duress could be raised in offences under the Official Secrets Act, there
was Insufficient precision In Shayler's claims. He could not identify the action that was going to create
imminent threats to life, nor could he identify the potential victims or establish that he had responsibility
for them. In this case, Lord Woolf went on to expand the category of people from simply those with a
close tie, to the class for whom defendant may consider himself responsible.

3) The relevant tests are in general objective, with reference to the reasonableness
of the defendant's perceptions and conduct.

RvA

The defendant was convicted of the offence of perverting the course of justice when she falsely retracted
allegations of rape against her husband. She did so in the belief that she would suffer serious injury by
her husband if she did not. This fear was not based on any reasonable grounds as no threat of violence
had been made to her when she made the false retractions.
R v Shayler:
The defendant's belief was not reasonable as there was no plausible case appearing in the leaked
documents that members of the public were at imminent risk of death or serious injury.
R v Abdul Hussain:
The execution of the threat need not be immediate. Imminent peril of death or serious injury is an
essential element of both types of duress. The defense of duress is available to those who hijack an
aircraft, although in such cases the terror induced in innocent passengers will raise issues of
proportionality for determination.
R v Bowen
The appellant had on 40 occasions obtained electrical goods amounting to a value of £20,000 by
deception. He had so acted because of threats to petrol bomb himself and his family. The appellant was
abnormally suggestible and vulnerable. He had a low IQ of 68. The trial judge did not direct the jury as to
whether the characteristics of the defendant could be taken into account. He was convicted and
appealed. The appeal was dismissed and conviction upheld. Characteristics of being abnormally
suggestible and vulnerable were not compatible with a person of reasonable firmness and therefore
were not characteristics that could be taken into account. Also, a low IQ falls short of being a mental
impairment and cannot be taken into account.
Stuart Smith U Identified the following characteristics that could be taken into account: Age, sex,
pregnancy, serious physical disability, a recognized mental illness or psychiatric condition.
4) The defense is available only where the criminal conduct for which it is sought to
excuse has been directly caused by the threats relied upon.
This requires the defendant to execute or participate in the crime because of the threat. In Valderama
Vega, the Court held that if the defendant had smuggled cocaine solely on the basis of the threat this his
homosexuality would be revealed, he would not have been able to plead the defense.
5) There must have been no evasive action the defendant could reasonably have
been expected to take:
The defense is not available if it could have been avoided whether by escaping the coercer or seeking
police protection.
R v Gill:
The defendant had been left alone outside his yard which he was due to rob. He was not given the
defense as he could have had raised the alarm and escape the threat.
R v. Hudson and Taylor
The teenage girls were charged with perjury when they were threatened of being cut up. They were
convicted as the threat could hardly be carried out immediately in open court. However, the Court of
Appeal allowed the appeal stating that police protection was not always reasonably to be expected.
R v Hasan:

The above approach has been abandoned and now the defense is not available unless the defendant
reasonably apprehended immediate or almost immediate death or serious injury for failure to comply.

6) The defendant must not voluntarily have laid themselves open to the
duress relied upon:

Intoxication:

R v Graham:
The jury should be directed to disregard any evidence of the defendant's intoxicated state when
assessing whether he acted under duress, although he may be permitted to raise intoxication as a
separate defense in its own right.
Voluntary subjection to the risk of coercion:
Placing oneself voluntarily at the risk of coercion:
 R v Sharpe
The defendant was a party to a conspiracy to commit robberies who said that he wanted to pull out
when he saw his companions equipped with guns, whereupon one of the robbers threatened to blow his
head off if he did not carry on with the plan. In the course of the robbery, the robber killed a person. The
defendant was convicted of manslaughter and appealed. In dismissing the appeal, the Court of Appeal
held that a man must not voluntarily put himself in a position where he is likely to be subjected to such
compulsion.
R v Heath
D was charged with possessing cannabis with intent to supply. He argued duress that he was a heroin
user and had become indebted to his own supplier, who had threatened serious Injury if he did not
assist. It was held that D had voluntarily placed himself in a situation where it was likely that he would be
subjected to threats and pressured into committing a criminal offence thereby precluding the defense of
duress for subsequent criminal conduct.
7) Duress may be a defense to any crime except some forms of treason, murder and
attempted murder
DPP v. Lynch:
D was an accessory to murder in that he drove a car to a place under threats from- an IRA gunman M. D
waited while M and his associates killed a policeman, and then drove them away, it was held by a 3-2
majority in the House of Lords allowed his defense of duress.
R v Howe:
D acting under duress, took part with others in two separate murders, and on a third occasion the
intended victim escaped. Using the 1966 Practice Statement the House of Lords departed from the
decision in Lynch. Duress is not available as a defense to murder either to a principal or accessory.
Morals, law and policy should deny a man the right to take an innocent life even at the price of his own.
R v Sette
D aged 17 caused serious Injuries when he stabbed his mother with intent to kill her.
He alleged that his father told him to do so and threatened to kill him if he did not carry out his wishes.
Following the decision in R v Howe, as duress is no defense to murder it would be Illogical to apply this
defense to attempted murder.
R v Ness
Duress is a defense to conspiracy to murder
Duress of Circumstances
Here the defendant is compelled to commit an unlawful act by external circumstances. Duress, may be a
defense to circumstances and driving offences.
R v Willer
D drove 'recklessly' at about 10 mph through a pedestrian precinct to escape from a gang threatening
violence to him and his passengers. Duress should in any case have been left to the jury. This was not the
usual sort of duress - the gang had not told D to drive on the pavement - but duress of circumstances
could be used even where necessity could not.
R v Conway
 The defendant mistakenly believed that he was being attacked by a gang when in fact they were plain
clothes police officers trying to make an arrest on his passenger. The defense remained available as the
mistake was a reasonable one.
R v Martin
Disqualified driver drove stepson to work (had overslept) fearing he would lose his Job that would cause
wife to commit suicide. Duress of circumstances considered as a separate defense, This was the first time
the defense was recognized as a separate defense.
R v Pommell
D found in bed with a loaded machine gun, D claimed that he had taken it off another man to prevent
him using it, and was going to take it to the police in the morning. It was held that he should have been
allowed to raise the defense of duress of circumstances, but that the jury would need to consider his
behavior with the gun to decide if the duress had ceased.
R v Peterave (2018]
the Court of Appeal affirmed that defense would apply in a case where the defendant was charged with
causing serious injury by dangerous driving, contrary to s.1A of the Road Traffic Act 1988, when he had
mounted the pavement and injured the victim in trying to escape from a dangerous gang.

These cases reflect justifications rather than excuses and thus the defense begins to transmute into a
defense of necessity.
ADVANTAGES DISADVATAGES/ Reforms
Necessity; Necessity;
 Moral foundation: Reflects the principle that the law  Slippery slope: Risk of abuse – allowing necessity might
should not punish people for doing what is morally right justify illegal actions too easily.
or necessary in an emergency.  Undermines the rule of law: Encouraging individual
 Flexibility: Allows the legal system to respond to judgment over legal rules can weaken legal certainty.
exceptional cases where strict application of the law  Judicial discomfort: Courts are wary of opening the door
would be unjust. to claims that justify breaking the law based on
 Recognizes human instinct: Acknowledges that people subjective assessments of necessity.
may act to preserve life or prevent greater harm, aligning  Not fully accepted: As Wilson notes, English law is
law with natural human behavior. reluctant to embrace necessity as a general defense
Duress (e.g., Dudley and Stephens).
 Human frailty: Recognizes that people may act under Duress
threats they cannot reasonably resist.  Excludes some offenses: Not available for murder,
 Moral involuntariness: Reflects the idea that criminal attempted murder, or some forms of treason (per Howe,
liability should be based on free will – if someone acts Gotts), which some argue is unfair.
under threat of death or serious harm, their choice is not  Moral inconsistency: Critics argue it is morally
free. inconsistent to deny duress for murder, especially if
 Structured doctrine: Provides relatively clear criteria someone kills under extreme threat.
(threat of death/serious harm, immediacy, no escape,  Hard to prove: High evidentiary threshold – may be
proportionality, etc.). difficult for defendants to establish all elements.
 Potential for false claims: Risk of fabricated defenses,
 Self-defense especially in gang-related or organized crime contexts.
 Strong moral basis: Widely accepted that individuals can Self- Defense
protect themselves and others from harm.
 Public policy: Encourages people to defend themselves  Subjectivity risk: The test relies on the defendant’s
rather than remain passive victims. perception, which can be biased or mistaken.
 Proportionality framework: Allows force if reasonable in  Excessive force: Can be difficult to draw the line
the circumstances as the defendant believed them to be between reasonable and excessive force.
(s.76 Criminal Justice and Immigration Act 2008).  Potential for vigilantism: If overused, it may encourage
aggressive or preemptive violence.
 Controversial in certain contexts: Especially in cases
involving preemptive strikes or disproportionate force
(e.g., Tony Martin case).

REFORMS
SELF-DEFENSE NECESSITY DURESS
 Ambiguity in applying the  The defense is underdeveloped  The exclusion of duress for
reasonableness test. and inconsistently applied. murder is morally problematic.
 Problems in how the law treats  The lack of a clear doctrine  The test for duress is too rigid and
mistaken belief, especially in cases leads to uncertainty and doesn’t account for psychological
of honest but unreasonable judicial discomfort. or social realities (e.g., in cases of
perceptions of threat.  Courts have rejected general battered women, gang influence).
 The balance between protecting necessity in serious cases (e.g.,
victims and preventing excessive Dudley and Stephens).
force. Suggested Reforms: Suggested Reforms:
Suggested Reforms: 1. Formal recognition: Wilson 1. Allow duress for all offenses,
1. Clarify proportionality: He suggests leans toward codifying including murder: Wilson argues
clearer statutory guidelines or necessity as a narrow but real that the complete exclusion for
judicial direction on what counts as defense where harm avoidance murder (per Howe and Gotts) is
“reasonable force” to prevent is justified by proportionality too harsh. He suggests that juries
inconsistencies, especially in and lack of alternatives. should at least be allowed to
domestic burglary/self-defense (e.g., 2. Establish limits: He argues for consider the defense in extreme
Tony Martin). clearly defined boundaries to cases.
2. Refine the role of mistake: Wilson is avoid abuse—e.g., 2. Subjectivity and vulnerability:
critical of how the law allows an distinguishing medical Reform should consider the
honest mistake, even if necessity (Re A) from civil psychological makeup and social
unreasonable (s.76 CJIA 2008). He disobedience or self-interest. context of the defendant—
hints that a more nuanced approach 3. Moral reasoning: He especially in cases involving
could better reflect both moral and encourages aligning necessity coercive control or cumulative
social concerns—e.g., considering with moral reasoning—for pressure (e.g., Hudson and Taylor
the reasonableness of the mistake. example, it should be available vs. Hasan).
3. Tighten the householder defense: in life-and-death medical cases 3. Codify the defense: A statutory
He critiques the extension of leeway or disaster scenarios, where definition of duress would ensure
in householder cases (s.76(5A)) for inaction would result in greater clarity, especially regarding:
potentially inviting disproportionate harm. o What threats qualify
force. He recommends restoring o The time between threat
more objective assessments. and offense
o The expectations of
escape or police
protection

DIMINISHED RESPONSIBILITY

LOSS OF CONTROL