1
DEFENCES
Compulsion
- Duress
- Motive and context = generally irrelevant but centre-stage here
- Unique combo of a good motive operating in a penologically acceptable context
- Motive is to AVOID harm
- Compulsion is not available for murder
- Conduct is objectively wrong but still excusable because we can expect
reasonable people to have chosen differently
A.Wertheimer:
- Asserts that duress is a defence of justification
- Special instance of justificatory necessity
A.Norrie: ‘Rational will is deposed from the throne of action’
- Corrosive effect of fear
- D’s will is subjugated by that of his coercer
- Operates as some sort of moral insanity which is similar to provocation
Howe
- Lord Hailsham: ‘concession to human frailty…a reasonable man of average
courage is entitled to embrace as a matter of choice the alternative which a
reasonable man could regard as the lesser of two evils’
- Removed 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 can be available to a charge of causing GBH with intent, which in
itself is sufficient MR for murder
Gotts
- Lord Jauncey: ‘the highest duty of the law is to protect the freedom and lives of
those who live under it’
Lynch
- Lord Edmund: ‘Threat of immediate death or serious personal violence is so
great as to overbear the ordinary power of human resistance should be
accepted as a personal justification for acts which would otherwise be criminal’
Baker
- D must act to avert an unjust threat of serious injury or death to himself or
another
- Threat must be of physical harm. Not enough to allay serious psychological harm
, 2
Singh
- Not enough to entertain a rational desire to escape from a difficult or impossible
situation
- Financial coercion or blackmail will not suffice
Perka
- Free choice is only deemed absent where the harm threatened was so great as to
leave the defendant with effectively no other option
- What should be important is that the harm threatened is out of proportion to the
price exacted
Dao
- Charged with cultivating cannabis that Ds had duped into entering a cannabis
factory
- Locked in premises with no means of escape and told that unless they assisted
in the cultivation they weren’t allowed out
- Credible threat of death or injury was necessary
Oritz
- Court of Appeal: threats directed against the accused’s wife and family
- Defence was available because there was a close emotional relationship
Hasan
- House of Lords stated obiter
- Threats directed against ‘a person for whose safety the defendant would
reasonably regard himself as responsible’ BUT NO FURTHER THAN THIS
Part Subjective/Part Objective Test
Substantially subjective:
- D impelled to act as he did because he reasonably believed the coercer, through
have said/done something, gave him good cause to fear that if he did not act, the
coercer would have killed him/caused serious physical injury
- HL in Hasan
Substantially Objective:
- The sober person of reasonable firmness, sharing the characteristics of D,
would not have responded to what the coercer said or would have done to
convince D to take part in the offence
- Prosecution bears burden of disproving the defence — EVIDENTIAL BURDEN
- Frailer the person the greater the concession should be — Law Com No.218
- Judge will refuse to allow jury to consider evidence that person is unusually
susceptible to coercion — Horne
, 3
Hegarty
- D pleaded duress to charge of robbery and possession of firearm
- Threatened with violence against his family if he refused
- Adduced medical evidence to the effect that he was emotionally unstable and in
a grossly elevated neurotic state
- Court of Appeal dismissed the case — characteristics relied upon were
inconsistent to those of a ‘sober person of a reasonable firmness’
Emery
- D was convicted for failing to protect her child from violence by her partner
- D was physically abused by him for a prolonged time
- Court of Appeal allowed medical evidence concerning her mental state due to
his actions
- She passed the reasonable firmness test
- Her capacity to resist threats had been eroded
Immediacy of Threat
Abdul-Hussain
- Court of Appeal held that the fear of imminent death at the hands of the Iraqi
authorities could form the evidence for plea of duress to a charge of hijacking
- Imminence rather than immediacy of threat was appropriate measure
Hudson and Taylor
- Teenage girls committed perjury
- Gang threatened to cut them up if they did not do so
- Pleaded duress
- Court of Appeal found in favour of D
- Seeking police protection was not always reasonably expected, especially when
Ds are young and impressionable
- Public policy imposes a presumption that police protection should normally be
sought
Criminal Organisations
Sharp
- D joined criminal organisation
- Participated in robbery in which a sub-postmaster was killed
- Defence to manslaughter he used was duress
- Only undertook robbery because there was a gun to his head
- Courts rejected this as he voluntarily joined the gang and should have known
that pressure might later be brought to commit an offence
, 4
Failure of Proof Defences
Automatism
- Negates both MR and AR
- Outright acquittal
Insanity
- Insane automatism
M’Naghten
- D suffering with delusions and persecution syndrome
- Fire gun at PM’s secretary believing he was shooting the PM
- D believed PM was plotting against him
- HELD: House of Lords
- Every man is presumed sane until the contrary is proved
- RULES:
- 1. Defect of reason
- 2. Disease of mind
- 3. Doesn't know what he is physically doing
- 4. Doesn't know what he is doing is against the law
- HL said that mind means: mental faculty of reason, memory and
understanding
Defect of Reason
Clarke
- D charged with shoplifting
- Admitted to taking goods
- Said it was because of depression
- NO DEFECT OF REASON (DOR)
Disease of Mind
Three Tests:
1. Bratty test: ‘any mental disorder which has manifested itself in violence and is
prone to recur’
2. Quick test: ‘insanity defence not appropriate for those whose condition is
temporary, easily controllable and caused by some external’
3. Kemp test: lack of awareness caused by an internal condition. If it is a
temporary condition or is controllable it will be an external factor and non-
insane automatism
DEFENCES
Compulsion
- Duress
- Motive and context = generally irrelevant but centre-stage here
- Unique combo of a good motive operating in a penologically acceptable context
- Motive is to AVOID harm
- Compulsion is not available for murder
- Conduct is objectively wrong but still excusable because we can expect
reasonable people to have chosen differently
A.Wertheimer:
- Asserts that duress is a defence of justification
- Special instance of justificatory necessity
A.Norrie: ‘Rational will is deposed from the throne of action’
- Corrosive effect of fear
- D’s will is subjugated by that of his coercer
- Operates as some sort of moral insanity which is similar to provocation
Howe
- Lord Hailsham: ‘concession to human frailty…a reasonable man of average
courage is entitled to embrace as a matter of choice the alternative which a
reasonable man could regard as the lesser of two evils’
- Removed 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 can be available to a charge of causing GBH with intent, which in
itself is sufficient MR for murder
Gotts
- Lord Jauncey: ‘the highest duty of the law is to protect the freedom and lives of
those who live under it’
Lynch
- Lord Edmund: ‘Threat of immediate death or serious personal violence is so
great as to overbear the ordinary power of human resistance should be
accepted as a personal justification for acts which would otherwise be criminal’
Baker
- D must act to avert an unjust threat of serious injury or death to himself or
another
- Threat must be of physical harm. Not enough to allay serious psychological harm
, 2
Singh
- Not enough to entertain a rational desire to escape from a difficult or impossible
situation
- Financial coercion or blackmail will not suffice
Perka
- Free choice is only deemed absent where the harm threatened was so great as to
leave the defendant with effectively no other option
- What should be important is that the harm threatened is out of proportion to the
price exacted
Dao
- Charged with cultivating cannabis that Ds had duped into entering a cannabis
factory
- Locked in premises with no means of escape and told that unless they assisted
in the cultivation they weren’t allowed out
- Credible threat of death or injury was necessary
Oritz
- Court of Appeal: threats directed against the accused’s wife and family
- Defence was available because there was a close emotional relationship
Hasan
- House of Lords stated obiter
- Threats directed against ‘a person for whose safety the defendant would
reasonably regard himself as responsible’ BUT NO FURTHER THAN THIS
Part Subjective/Part Objective Test
Substantially subjective:
- D impelled to act as he did because he reasonably believed the coercer, through
have said/done something, gave him good cause to fear that if he did not act, the
coercer would have killed him/caused serious physical injury
- HL in Hasan
Substantially Objective:
- The sober person of reasonable firmness, sharing the characteristics of D,
would not have responded to what the coercer said or would have done to
convince D to take part in the offence
- Prosecution bears burden of disproving the defence — EVIDENTIAL BURDEN
- Frailer the person the greater the concession should be — Law Com No.218
- Judge will refuse to allow jury to consider evidence that person is unusually
susceptible to coercion — Horne
, 3
Hegarty
- D pleaded duress to charge of robbery and possession of firearm
- Threatened with violence against his family if he refused
- Adduced medical evidence to the effect that he was emotionally unstable and in
a grossly elevated neurotic state
- Court of Appeal dismissed the case — characteristics relied upon were
inconsistent to those of a ‘sober person of a reasonable firmness’
Emery
- D was convicted for failing to protect her child from violence by her partner
- D was physically abused by him for a prolonged time
- Court of Appeal allowed medical evidence concerning her mental state due to
his actions
- She passed the reasonable firmness test
- Her capacity to resist threats had been eroded
Immediacy of Threat
Abdul-Hussain
- Court of Appeal held that the fear of imminent death at the hands of the Iraqi
authorities could form the evidence for plea of duress to a charge of hijacking
- Imminence rather than immediacy of threat was appropriate measure
Hudson and Taylor
- Teenage girls committed perjury
- Gang threatened to cut them up if they did not do so
- Pleaded duress
- Court of Appeal found in favour of D
- Seeking police protection was not always reasonably expected, especially when
Ds are young and impressionable
- Public policy imposes a presumption that police protection should normally be
sought
Criminal Organisations
Sharp
- D joined criminal organisation
- Participated in robbery in which a sub-postmaster was killed
- Defence to manslaughter he used was duress
- Only undertook robbery because there was a gun to his head
- Courts rejected this as he voluntarily joined the gang and should have known
that pressure might later be brought to commit an offence
, 4
Failure of Proof Defences
Automatism
- Negates both MR and AR
- Outright acquittal
Insanity
- Insane automatism
M’Naghten
- D suffering with delusions and persecution syndrome
- Fire gun at PM’s secretary believing he was shooting the PM
- D believed PM was plotting against him
- HELD: House of Lords
- Every man is presumed sane until the contrary is proved
- RULES:
- 1. Defect of reason
- 2. Disease of mind
- 3. Doesn't know what he is physically doing
- 4. Doesn't know what he is doing is against the law
- HL said that mind means: mental faculty of reason, memory and
understanding
Defect of Reason
Clarke
- D charged with shoplifting
- Admitted to taking goods
- Said it was because of depression
- NO DEFECT OF REASON (DOR)
Disease of Mind
Three Tests:
1. Bratty test: ‘any mental disorder which has manifested itself in violence and is
prone to recur’
2. Quick test: ‘insanity defence not appropriate for those whose condition is
temporary, easily controllable and caused by some external’
3. Kemp test: lack of awareness caused by an internal condition. If it is a
temporary condition or is controllable it will be an external factor and non-
insane automatism
