DEFENCES
Supervening defences differ from denials of responsibility due to the element of choice involved (have
both actus reus and mens rea)
The general defences
(Insanity)
Duress
Duress of circumstance
The public and private defence
Necessity
Robinson ‘Criminal Law Defences: A Systematic Analysis’ (1988)
Defences can be either a justification (D should be acquitted because he did the right thing) or an
excuse (D did the wrong thing, but it would be unfair to punish him)
Argues that there is a different between the two, although the criminal law does not distinguish
them
Justification defences provide a beneficial outcome for society and are designed to guide
behaviour whereas excuses are ‘concessions to human frailty’
Similarly, Child argues that it would be premature to eliminate this distinction
Nonetheless, the defence of necessity is purely a justification
Burden of proof
D must raise evidence for the defence he is seeking and it is then for the prosecution to disprove
the defence beyond reasonable doubt
Must meet the minimum level of the defence in order for the judge to leave the defence to
the jury
Bianco [2001]- judge withdrew the defence of duress due to a lack of evidence that D was
actually under any pressure
However, both insanity and diminished responsibility have reverse burdens to be proved on the
balance of probabilities
Duress
Either duress by threats or duress by circumstances
Duress by circumstances was developed from ‘necessity’ claims
Willer [1986]
Pommell [1995]
Generally understood as an excusatory defence
, D makes a plea to human frailty in general, recognising that, although he did have a choice
in the matter, he did ‘no more and no less than what most of us would have done placed in
those circumstances’
Objective criteria
The defence suffers from scepticism (particularly in cases of organised crime)
Exceptions where duress will not apply
Not a defence to treason (Purdy [1946])
Not a defence to murder (Abbott v The Queen (Trinidad and Tobago) [1977])
Not a defence to murder as an accomplice/secondary party (Howe [1987])
Distinguished DPP v Lynch [1975], where D was granted the defence of duress as a
secondary party, for practical reasons
Not a defence to attempted murder (Gotts [1992])
However, the criminal law does grant a defence for conspiracy to murder (Ness [2010])
Not a defence in circumstances of prior fault
Duress by threats/circumstances and murder/attempted murder
Exclusion for murder follows the rationale in ‘Hale’s Pleas of the Crown’ (1736) that even under
severe duress from which he cannot escape, ‘he ought rather to die himself, than kill an innocent’
Divides legal professionals and academics
Dudley and Stephens [1884]- in a shipwreck, two sailors resorted to cannibalism of the cabin
boy (who was frail and weak at any rate) in order to give themselves a longer chance of
survival
Convictions with murder were met with outcry and neither served long sentences (questions
of the connection between law and morality)
Similarly presented in Lynch that ‘for the law to understand not only how the timid but also
the stalwart may in a moment of crisis behave is not to make the law weak but to make it
just’ (sought to take a ‘common sense’ view in light of the natural instinct of self-
preservation)
However, Howe ultimately disagreed with Lynch (and the minority in Abbott) ‘that the
ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is
asked to take an innocent life rather than sacrifice his own’
‘Heroism is a quality to be praised, it does not follow that its absence is reason for censure’
(Simester and Sullivan)
Furthermore, while there is an ‘irresistible logic’ for the extension of the defence to murder,
this logic should seemingly be resisted (Hasan [2005]- case of aggravated burglary)
However, the law can seemingly produce unjust results (Wilson [2007])
Law Com No 304 (2006) state that duress should be allowed for murder, but D must satisfy the
legal burden for the requirements of duress on the balance of probabilities
Although this is somewhat controversial as defences such as self-defence and the loss of
self-control carry no such reverse burden
Supervening defences differ from denials of responsibility due to the element of choice involved (have
both actus reus and mens rea)
The general defences
(Insanity)
Duress
Duress of circumstance
The public and private defence
Necessity
Robinson ‘Criminal Law Defences: A Systematic Analysis’ (1988)
Defences can be either a justification (D should be acquitted because he did the right thing) or an
excuse (D did the wrong thing, but it would be unfair to punish him)
Argues that there is a different between the two, although the criminal law does not distinguish
them
Justification defences provide a beneficial outcome for society and are designed to guide
behaviour whereas excuses are ‘concessions to human frailty’
Similarly, Child argues that it would be premature to eliminate this distinction
Nonetheless, the defence of necessity is purely a justification
Burden of proof
D must raise evidence for the defence he is seeking and it is then for the prosecution to disprove
the defence beyond reasonable doubt
Must meet the minimum level of the defence in order for the judge to leave the defence to
the jury
Bianco [2001]- judge withdrew the defence of duress due to a lack of evidence that D was
actually under any pressure
However, both insanity and diminished responsibility have reverse burdens to be proved on the
balance of probabilities
Duress
Either duress by threats or duress by circumstances
Duress by circumstances was developed from ‘necessity’ claims
Willer [1986]
Pommell [1995]
Generally understood as an excusatory defence
, D makes a plea to human frailty in general, recognising that, although he did have a choice
in the matter, he did ‘no more and no less than what most of us would have done placed in
those circumstances’
Objective criteria
The defence suffers from scepticism (particularly in cases of organised crime)
Exceptions where duress will not apply
Not a defence to treason (Purdy [1946])
Not a defence to murder (Abbott v The Queen (Trinidad and Tobago) [1977])
Not a defence to murder as an accomplice/secondary party (Howe [1987])
Distinguished DPP v Lynch [1975], where D was granted the defence of duress as a
secondary party, for practical reasons
Not a defence to attempted murder (Gotts [1992])
However, the criminal law does grant a defence for conspiracy to murder (Ness [2010])
Not a defence in circumstances of prior fault
Duress by threats/circumstances and murder/attempted murder
Exclusion for murder follows the rationale in ‘Hale’s Pleas of the Crown’ (1736) that even under
severe duress from which he cannot escape, ‘he ought rather to die himself, than kill an innocent’
Divides legal professionals and academics
Dudley and Stephens [1884]- in a shipwreck, two sailors resorted to cannibalism of the cabin
boy (who was frail and weak at any rate) in order to give themselves a longer chance of
survival
Convictions with murder were met with outcry and neither served long sentences (questions
of the connection between law and morality)
Similarly presented in Lynch that ‘for the law to understand not only how the timid but also
the stalwart may in a moment of crisis behave is not to make the law weak but to make it
just’ (sought to take a ‘common sense’ view in light of the natural instinct of self-
preservation)
However, Howe ultimately disagreed with Lynch (and the minority in Abbott) ‘that the
ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is
asked to take an innocent life rather than sacrifice his own’
‘Heroism is a quality to be praised, it does not follow that its absence is reason for censure’
(Simester and Sullivan)
Furthermore, while there is an ‘irresistible logic’ for the extension of the defence to murder,
this logic should seemingly be resisted (Hasan [2005]- case of aggravated burglary)
However, the law can seemingly produce unjust results (Wilson [2007])
Law Com No 304 (2006) state that duress should be allowed for murder, but D must satisfy the
legal burden for the requirements of duress on the balance of probabilities
Although this is somewhat controversial as defences such as self-defence and the loss of
self-control carry no such reverse burden
