Criminal Law Revision Notes
AFFIRMATIVE DEFENCES
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INTRODUCTION
Where are we at?
→ Previously we focused on failure of proof defences; these are not real defences, but they go to show that the
elements of the crime (AR and MR) have not been completed.
→ Now we are shifting to affirmative defences; these are often referred to as true defences. These are defences
where an offence has been committed, where the actus reus is met with the relevant mens rea. While the
defendant agrees that he/she have committed an offence, they raise a defence to justify the act in order to
escape criminal liability.
Rationale for affirmative defences
→ Motive (Wilson): The motive is the defendant’s understandable desire to avoid harm and therefore in this
context punishment would serve no purpose whether as deterrent or other vehicle of social defence.
→ Reasonableness (Wilson): The defence contains a requirement of reasonableness (of reaction).
Types of affirmative defences
1) Duress
Lynch [1975]: Per Lord Simon, “fear, produced by threats, of death or grievous bodily harm…if a certain act is not
done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining him to
perform it. ”
EXAMPLE: If someone puts a gun to your head and threatens to shoot you if you do not shoot a stranger.
2) Necessity
! This is a rather ambiguous defence, the scope of which is uncertain. It has overlaps with the other forms of defences.
→ D acts in choosing the “lesser of two evils”.
3) Public and Private Defence
→ D acts to repel unjustified attack against self, other, property. This can also be to prevent a crime from occurring
Shared structure
→ Despite having their own set of requirements and cases, these defences are raised in the same sequence of
events.
1) Threat of harm (almost exclusively, imminent)
2) D acts to prevent that harm
3) Doing so involves committing a criminal offence
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, Criminal Law Revision Notes
_______________________________________________________________________________________________
DURESS
Elements of Duress
Hasan [2005]: Per Lord Bingham (mentions these elements in his obiter),
1) D reasonably believes there is a threat of death or serious injury;
2) That threat must have been made to D or his immediate family or someone close to him or someone for whom
D would reasonably regard himself as responsible;
3) D’s perception of threat and his conduct in response are to be assessed objectively – both must be reasonable
4) The conduct to be excused must have been directly caused by the threat;
5) There must have been no evasive action D could have reasonably taken;
6) D cannot rely on threats to which he voluntarily exposed himself;
7) The defence is unavailable to murder, attempted murder, or treason.
→ Another way of thinking about this, is by looking at the elements of a threat and the requirements for a
defendant’s response to it. This method of organisation covers the information as the above.
The Threat
→ Duress is only available if D was compelled to act in the way she did because of the threats. This is a subjective
test.
→ The case law has been very clear that the threat must be of death or serious injury.
! Rationale behind this requirement: free choice is only deemed absent where the harm threatened was so great as to
leave the defendant with effectively no other option (thus making punishment unjustified and pointless and therefore
them not blameworthy).
Singh [1973]: The defendant was blackmailed into participating in human trafficking offences that he was already
involved in. Failure to do the said act, meant that the blackmailer would have divulged his marital infidelities. This was
held not to be a sufficient threat to constitute duress.
Van Dao (2012); Joseph (2017): These cases involved victims of human trafficking. They were initially tricked to enter
a warehouse, under the impression that they were there to clean up. However, when they go there they were blackmailed
into cultivate marijuana. Failure to succumb to the threat meant that they would not be able to leave; they were threatened
with false imprisonment. The court held that this did not constitute duress.
R v A [2012]: It was confirmed, in obiter, that a threat of rape would amount to a serious injury for the purposes of
duress.
! Any threats short of death or serious injury (such as minor injury, loss of job or reputation or, perhaps most common, to
inform police of some other offence) will not excuse, and can only go towards the mitigation of the sentence (Baker and
Wilkins [1997]).
Ireland and Burstow [1998]: Earlier in Baker and Wilkins, the court held that the threat had to be of physical harm which
did not constitute psychological harm. But in this case, the HL stated that a clear distinction could not be drawn between
physical injury and psychological harm. The HL interpreted ABH in OAPA 1861 as applying to psychological injuries.
Valderama Vega [1985]: This case had involved the importing of cocaine and the defendant was threatened to do
several things: (1) the lives of family would be in danger, (2) his homosexuality would have been outed against his wished.
The defendant was also under severe financial difficulty. The court said that only the threats against his family would
constitute duress. Hence, the court stated in this case that duress can be relied on so long as there is threat of serious
injury alongside the threat of psychological harm. However, the defence will only be successful if the offence was
committed in response to the former and not latter.
AFFIRMATIVE DEFENCES
_______________________________________________________________________________________________
INTRODUCTION
Where are we at?
→ Previously we focused on failure of proof defences; these are not real defences, but they go to show that the
elements of the crime (AR and MR) have not been completed.
→ Now we are shifting to affirmative defences; these are often referred to as true defences. These are defences
where an offence has been committed, where the actus reus is met with the relevant mens rea. While the
defendant agrees that he/she have committed an offence, they raise a defence to justify the act in order to
escape criminal liability.
Rationale for affirmative defences
→ Motive (Wilson): The motive is the defendant’s understandable desire to avoid harm and therefore in this
context punishment would serve no purpose whether as deterrent or other vehicle of social defence.
→ Reasonableness (Wilson): The defence contains a requirement of reasonableness (of reaction).
Types of affirmative defences
1) Duress
Lynch [1975]: Per Lord Simon, “fear, produced by threats, of death or grievous bodily harm…if a certain act is not
done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining him to
perform it. ”
EXAMPLE: If someone puts a gun to your head and threatens to shoot you if you do not shoot a stranger.
2) Necessity
! This is a rather ambiguous defence, the scope of which is uncertain. It has overlaps with the other forms of defences.
→ D acts in choosing the “lesser of two evils”.
3) Public and Private Defence
→ D acts to repel unjustified attack against self, other, property. This can also be to prevent a crime from occurring
Shared structure
→ Despite having their own set of requirements and cases, these defences are raised in the same sequence of
events.
1) Threat of harm (almost exclusively, imminent)
2) D acts to prevent that harm
3) Doing so involves committing a criminal offence
_______________________________________________________________________________________________
, Criminal Law Revision Notes
_______________________________________________________________________________________________
DURESS
Elements of Duress
Hasan [2005]: Per Lord Bingham (mentions these elements in his obiter),
1) D reasonably believes there is a threat of death or serious injury;
2) That threat must have been made to D or his immediate family or someone close to him or someone for whom
D would reasonably regard himself as responsible;
3) D’s perception of threat and his conduct in response are to be assessed objectively – both must be reasonable
4) The conduct to be excused must have been directly caused by the threat;
5) There must have been no evasive action D could have reasonably taken;
6) D cannot rely on threats to which he voluntarily exposed himself;
7) The defence is unavailable to murder, attempted murder, or treason.
→ Another way of thinking about this, is by looking at the elements of a threat and the requirements for a
defendant’s response to it. This method of organisation covers the information as the above.
The Threat
→ Duress is only available if D was compelled to act in the way she did because of the threats. This is a subjective
test.
→ The case law has been very clear that the threat must be of death or serious injury.
! Rationale behind this requirement: free choice is only deemed absent where the harm threatened was so great as to
leave the defendant with effectively no other option (thus making punishment unjustified and pointless and therefore
them not blameworthy).
Singh [1973]: The defendant was blackmailed into participating in human trafficking offences that he was already
involved in. Failure to do the said act, meant that the blackmailer would have divulged his marital infidelities. This was
held not to be a sufficient threat to constitute duress.
Van Dao (2012); Joseph (2017): These cases involved victims of human trafficking. They were initially tricked to enter
a warehouse, under the impression that they were there to clean up. However, when they go there they were blackmailed
into cultivate marijuana. Failure to succumb to the threat meant that they would not be able to leave; they were threatened
with false imprisonment. The court held that this did not constitute duress.
R v A [2012]: It was confirmed, in obiter, that a threat of rape would amount to a serious injury for the purposes of
duress.
! Any threats short of death or serious injury (such as minor injury, loss of job or reputation or, perhaps most common, to
inform police of some other offence) will not excuse, and can only go towards the mitigation of the sentence (Baker and
Wilkins [1997]).
Ireland and Burstow [1998]: Earlier in Baker and Wilkins, the court held that the threat had to be of physical harm which
did not constitute psychological harm. But in this case, the HL stated that a clear distinction could not be drawn between
physical injury and psychological harm. The HL interpreted ABH in OAPA 1861 as applying to psychological injuries.
Valderama Vega [1985]: This case had involved the importing of cocaine and the defendant was threatened to do
several things: (1) the lives of family would be in danger, (2) his homosexuality would have been outed against his wished.
The defendant was also under severe financial difficulty. The court said that only the threats against his family would
constitute duress. Hence, the court stated in this case that duress can be relied on so long as there is threat of serious
injury alongside the threat of psychological harm. However, the defence will only be successful if the offence was
committed in response to the former and not latter.
