AFFIRMATIVE DEFENCES

Self Defence

Criminal Law Act (1967): s.3 “A person may use force as is reasonable in the circumstances in the prevention os crime, or in
effecting or assisting in the lawful arrest or offenders or suspected offenders or of persons unlawfully at large”.

 Private defence can be used in self-defence, defence of another or defence of property

 Force must be reasonable for the purpose of public and private defence.
 D must be acting defensively and not in retaliation, and force used must be directed toward the threat
 It’s a defence to all crimes including murder

Force must be used to prevent the crime:

 R v Wilkinson (2018): D, a taxi driver, was convicted of false imprisonment when he returned the passenger to
where he had picked her from after she had refused to pay. D sought to rely on s.3 by contending that the force
used was reasonable and was used to prevent the passenger from committing a crime. Appeal was dismissed
because refusing to pay was not a crime, and the use of force was not to prevent the crime because it had already
occurred.

 R v Demario Williams (2020): D killed V in order to recover a stolen property. S.3 allows reasonable force to
prevent a crime such as theft or robbery. It cannot be utilised to recover a stolen property.

 Whether use of force is lawful depends not on whether it was necessary, but whether the defendant honestly
believe it to be necessary.

 Beckford (1988): D contended that he used a gun because he believed he was being shot at. Conviction was
quashed
 D’s belief must be honest
 D’s use of force must be proportionate to the threat

Exception to Beckford:
 Defence will not be available if D is suffering from ‘insane delusion’ that he is being attacked. Oye (2013)
 Defence will not be available if the mistake is due to D’s self-intoxication. O’Conor (1991)
 Defence will not be available even if D was not intoxicated at the time of the offence, as long as mistake is
attributable to recent alcohol abuse. R v Taj

Meaning of ‘reasonable force’ (Objective test codified under s.76 Criminal Justice and Immigration Act 2008) :

 D’s use of force will not be regarded as reasonable in the circumstances as D believed them to be if use of force
was disproportionate.
 Disproportionate is a question of degree of degree. Use of force is proportionate or not depends on the
circumstances A-G’s Reference (1984): D, a shopkeeper, armed himself with petrol bombs to protect his property
from rioters . It was held that the use of force was not disproportionate.
 A person protecting his property from burglars will be using a disproportionate force if he shoots to kill (Martin
2001)
 If greater degree of force is used in self-defence (killing V) than was necessary in the circumstances, D will be
guilty of Murder (Clegg 1995): A soldier posted at check post fired 4 shots at a stolen car approaching at a speed.
The 4th shot killed a passenger. D was convicted of murder; the 4th shot was found not be in self defence because
the car had already passed.

Guidelines for assessing reasonableness of D’s response:

Use of force must be necessary.

No Duty to retreat.
 Field (1972): D was told that V is coming to attack him. D remained where he was, and is avoiding the attack,
killed V
 R v bird (1985): D was slapped and pushed by V. D hit V in self defence without realising that she was holding a
glass. Conviction was quashed. COA: It is not necessary for D to show his unwillingness to engage in violence.
Provoking an attack:
 Rashford (2005): Self defence is available where D went to take revenge from V, and V went on the attack. D then
sought to defend himself and in the process killed V.
 Ballogun (2000): If D starts the violence, then self defence will not be available

Preemptive Strike:
D may make a preemptive strike as long as he reasonably believes that attack from the other person is imminent.
 A-G’s Reference (No.2 1983): D, a shopkeeper, armed himself with petrol bombs to protect his property from
rioters . It was held that the use of force was not disproportionate.
 Beckford (1988): Lord Griffith: “A man about to be attacked does not have to wait for his assailant to strike first
blow or fire the first shot; circumstances may justify a preemptive strike”.

Reasonable Force objectively decided:

 The amount of force used must be reasonable. It does not matter if D believed it to be reasonable.
 Jury may accept errors of judgement made under extreme stress
 Owino (1996): Degree of force used is reasonable is decided objectively.
 Palmer (1971): In deciding if the force used was excessive, the jury may take into account the situation D was in
and dilemma D faced.
 D’s honest belief is based on evidence. It cannot override the requirement that the force used must be
proportional to the threat faced.
Clegg (1995): A soldier posted at check post fired 4 shots at a stolen car approaching at a speed. The 4th shot
killed a passenger. D was convicted of murder; the 4th shot was found not be in self defence because the car had
already passed.
 How much force is lawful is a question of law and assessed objectively.
Martin (2001): D shot a burglar by overestimating the danger. COA upheld the conviction
Yaman (2012): Overestimating the danger and using excessive force will not be taken as a defence.
 For public and private defences, only those facts will be taken into account the D was aware of.
Dadson (1850): D, a guard, spotted an V and called him out to stop. V started running away. D shot him in the leg.
V was a thief with prior convictions but D was not aware that V was a thief. D was convicted of inflicting
GBH/wounding.

Householders:

 S.43 (5A) of the Crimes and Courts Act 2013 gives greater flexibility to householders in extreme situations where
their judgment may be clouded in assessing the level of force that may be necessary against the threat.
 The use of force by D will not be regarded as reasonable in the circumstances D believed them to be if it was
grossly disproportionate in the given circumstances
 The jury may regard the force to be unreasonable even if it was not grossly disproportionate, and it may regard
the force to be reasonable even if it was grossly disproportionate.
Collins v Secretary of State (2016): D injured V (trespasser) by using a headlock. V suffered injuries that were
unrecoverable. D was not prosecuted
R v Ray (2017): Despite being disproportionate, it is reasonable or not is a matter for the jury to decide, after
taking into account the context and all the circumstances.

Use of force is necessary for self-defence:

 Only available to the crimes involving use of force is necessary R v Riddell (2017)
 Self defence will not be available if D drives wrong way down the street to escape a threat. Duress may be
available.
 Self defence will be available if window is broken or some one is imprisoned – since these involve force
 DURESS
Reasonableness of reaction is important for this defence.
A-G v Wheelan (1934): Justice Murnaghan: “… threats of immediate death or serious personal violence so great as to
overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be
criminal”
D was convicted of handling stolen goods. D was under a death threat or immediate violence. It was held that D had no
opportunity to reassert his will because the threat was imminent. Defence of Duress was allowed.

Duress by Threat:

Graham (1982): D and his homosexual partners killed D’s wife. D contended that he was under duress since his partner was
a violent man. D was charged with first degree murder. Defence of duress not allowed.

Test from Graham:

1) D was compelled to act as he did was reasonable. If D had not acted, he would have been killed or serious injury
would have occurred
2) If D acted, a sober person with reasonable firmness, sharing the same characteristics as D, would have responded
in similar manner as D.

 Howe (1987): Duress is not a defence to murder, whether the accused acted to protect his own life or life of his
family

 Hassan (2005): D cannot rely on duress where his act is due to his association with known criminals.

Restrictions to defence of Duress, outlined in Hassan (2005):

The threat or danger must be death or serious injury:

 Valderrama-Vega (1985): Duress was not available when the threat was regarding exposing D’s homosexuality.
 Quayle (2005): D contended that he used prohibited drugs to fight the pain from leg amputation Duress of
circumstance was not available because pain is not akin to serious injury
 Regina v A (2012): Credible threat of Rape could ground defence for Duress or duress of circumstances
 Dao (2012): it was held to be no answer to the charge of cultivating cannabis that the defendants had been
duped into entering a cannabis factory, locked in the premises with no means of escape and told that unless they
assisted in the cultivation they would not be allowed out. A credible threat of death or serious injury was also
necessary.

The threat must be directed against D, his immediate family or someone for whom D reasonably regards himself as being
responsible:

 Hurley v Murray (1967): Escaped criminals compelled D to dispose of two corpses by holding his wife hostage.
 Ortiz (1986): D was forced to take part in drug smuggling after his wife children were threatened of
‘disappearance’
 Shayler (2001): Defence is available only when threat is directed to D or immediate family or someone D is
responsible for.
An emergency is no less an emergency for the fact that the individuals threatened are not known personally to
the defendant.

Relevant tests are objective, with reference to reasonableness of D’s perception of threats

 Duress under mistaken belief must be reasonable Graham (1982)

 R v A (2012): There no reasonable grounds for mistaken belief. D was convicted of preventing the course of justice
when she falsely retracted allegations of rape against her husband. She did so in the belief that she would face
serious injuries by her husband if she did not retract her allegations. Her belief was not reasonable as there was
no threat of violence by her husband
 Duress will not be available if D is inherently coward.
Hearty (1994): D was emotionally unstable and in a ‘grossly elevated neurotic state’. D was charged with robbery
and possession of fire arms. D raised defence of duress contending his family was under threat of violence.
Defence was not allowed.
 Emery (1993): The defendant had been convicted of cruelty for failing to protect her child from violence by her
partner, having herself suffered from prolonged physical abuse at his hands. The Court of Appeal held that it would be
right for the jury to be given medical evidence concerning her mental state since that mental state had been induced
by the very violence she was now relying upon as an excuse for her cruelty to her child. Emery was not giving an
account of why she was a coward in general but why, as a person of reasonable firmness, she lacked the capacity to
intervene in this particular type of situation. This was because, over a long period of time, her capacity to resist threats
had been eroded as would, moreover, that of the reasonable woman enduring similar treatment.
 Bowen (1997): The defendant, a man of low IQ, was convicted of obtaining services by deception. He adduced
evidence of coercion, namely that he and his family would be petrol bombed if he did not obtain goods for the
coercers. Court of Appeal ruled that having a low IQ did not affect a person’s ability to withstand threats and that
therefore reference to his IQ would have been irrelevant. D’s age, sex, or physical condition (e.g. pregnant) is taken
into account to ascertain if d was inherently coward.
 Swell (2004): If D has been effected by a trauma such as cumulative domestic abuse, it should be taken into account.

Defence is available only where the criminal conduct which it is sought to excuse has been directly cause by the threats
relied on:

 It is not enough for the D to be threatened by death or violence, D must execute or participate in the crime because of
the threat.
 Valderrama (1985): Duress was not available when the threat was regarding exposing D’s homosexuality and threat to
himself, but D participated because of the threat of being exposed.

There must have been no evasive action D could reasonable have been expected to take:

 Gill (1963): he accused was convicted of the theft of his employer’s lorry. The Court of Appeal stated obiter that a
defence of duress was not available in circumstances such as these, where the defendant had been left alone outside
his employer’s yard and therefore was well able to raise the alarm and escape the threat.
 Hudson and Taylor (1971): the defendants were teenage girls who committed perjury. A gang had threatened to ‘cut
them up’ if they did not do so. They pleaded duress. The trial judge refused to allow the defence since the threat could
hardly have been carried out immediately in open court. Nevertheless, the Court of Appeal allowed the appeal,
agreeing that seeking police protection was not always reasonably to be expected. This relaxed approach to
immediacy requirement was overruled by House of Lords in Hassan (2005). Hence defence is only available if the
threat of death or serious is IMMEDIATE or ALMOST IMMEDIATE.

D must not have voluntarily laid himself open to duress:

Intoxication:
Graham: Loss of moral fortitude due to effects of voluntary intoxication cannot be relied upon

Voluntary subjection to risk of coercion:

 Defence is not available if D voluntarily placed himself at risk or coercion.
Sharpe (1987): D joined a criminal gang, and later participated in a robbery where a person was killed. D raised
defence of duress contending that he had a gun to his head. Defence denied since D voluntarily joined the gang.
 Hassan (2005): HOL: D is precluded from relying on the defence of duress not only when they foresaw that violence
may be used for compliance, but also where D should have foreseen that violence might be used.
 Heath (2000): a drug user who was coerced into sup- plying a class B drug by his own supplier, whom he had not paid,
was denied the defence on the basis that he should have known the risks of mixing with drug dealers.

Duress can be a defence to any crime except for Murder, attempted murder and treason

 DPP v Lynch (1975): For a time it appeared that duress might nevertheless be a defence to murder, at least where the
defendant was a secondary party only.
 Howe (1987): HOL overruled Lynch by formally removing the defence from accessories to murder on the grounds that
there is no fair and certain basis upon which to differentiate principals and accessories in terms of culpability. Defence
is not available for attempted murder.
 Ness (2011): Defence is available for conspiracy to murder
 Gotts (1992): Duress cannot be used for attempted murder.

DURESS OF CIRCUMSTANCES
Driving offences:
 Willer (1986): The defence is available to charge of reckless driving. D drove through a pedestrian precinct to escape
threat of violence to him and his passengers.
 Conway (1989): Court of Appeal said that there was no difference in principle between a person who was compelled
to break the law as a result of unlawful coercion and a person who broke the law in order to avert a threat of
unjustified harm.
 Martin (1989): The defendant was charged with driving while disqualified. His defence relied upon a credible threat by
the defendant’s wife that if he did not drive his son to work, she would commit suicide. It should be noted that neither
the defendant nor anyone else was threatened with an unlawful act of violence, which he acted to avert. Rather, the
defendant was faced with ‘objective dangers’ threatening another. Allowing the defence, Simon Brown J made clear
that duress of circumstances was an application of necessity – ‘it matters not whether the risk of death is murder or
by suicide or indeed by accident.

Non-Driving Offences
 Pommell (1995): D was charged and convicted of being in possession of a loaded machine gun. D claimed that he had
taken possession of the gun to prevent the owner from killing, and he intended to take it to the police the next day.
The defence was available.
 S and L (2009): The defendants deployed unlicensed guards. Their defence to a charge under the Private Security
Industry Act 2001 was that this was done to address the risk of terrorist attack on their premises. They contended that
there were no alternative means of protecting those who might be passing by or those who were in those premises
from death or serious injury other than by protection to be afforded by the guards. Defence was allowed.
 Pipe v DPP: where D had been convicted of speeding at over 100 mph while rushing a child with a broken leg to
hospital. Owen J held that the defence of necessity was potentially available on such facts, and was not confined (as
the justices had supposed) to cases in which there was a life-threatening situation.

The cases above involve ‘crimes without victims’.

Duress of circumstance may be available where there’s an innocent victim.

 R v Petgrave (2008): D was charged with causing serious injury by dangerous driving when he mounted the pavement
and injured the victim in trying to escape a dangerous gang.

In duress of circumstances, it is about choosing the lesser of two evils. If D had not broken the law, something worse could
have happened. Pommel, Martin, Sand L, Conway and Willer.