General Defenses in Criminal Law: Duress, Self-Defense, and Necessity
Introduction to General Defenses in Criminal Law
Context and Scope: This lecture marks the final substantive session of the module, focusing on general defenses. These defenses are "general" because they apply across multiple criminal offenses, distinguishing them from specific defenses like consent in offenses against the person.
General Defenses vs. Denials of Liability:
Denials of Liability: These include intoxication, automatism, and to some extent insanity. These are technically denials of the essential elements of the crime, such as (relevance) or voluntariness. They argue that the offense itself was never complete.
General Defenses Proper: These apply when the and are fully satisfied. The offense is complete, but the defendant seeks exculpation due to specific circumstances (e.g., self-defense or duress), leading to an unqualified acquittal.
Administrative Note: The attendance code for this session is .
Conceptualizing Defenses: Justifications, Excuses, and Exemptions
Justifications: These apply when the defendant's action is deemed "the right thing to have done."
Example: Heroically attacking a person who is currently assaulting a victim. The law says the actor is justified because that behavior should be repeated in similar circumstances.
Excuses: These apply when the action was technically wrong, but the law concedes it would be wrong to blame the individual as a moral agent.
Example: If a defendant mistakenly believes they are under attack and hits someone who was just play-fighting. The act is "bad," but the defendant's reasons (honest belief) means the act doesn't reflect poorly on them as a moral agent.
Duress: Often categorized as an excuse because the defendant yielded to human frailty under extreme pressure.
Exempting Defenses: These apply to individuals who are not seen as rational actors subject to judgment at all.
Children: Those under the age of criminal responsibility ( old in England and Wales) are exempted.
Insanity: Certain cases within insanity where the individual is seen as outside the rational scope of criminal adjudication.
Practical Application: In problem questions, if multiple defenses apply, one should typically argue justification-style defenses before excuse-style ones.
Example (Partial Defenses to Murder): A defendant (such as an abused woman) might prefer "loss of control" over "diminished responsibility." Diminished responsibility implies a pathological mental condition ("something is wrong with me"), whereas loss of control suggests any rational person in that specific position might have reacted similarly due to provocation.
The Defense of Duress: Exclusions and Prior Fault
Definition: Duress occurs when a defendant commits a crime because they were threatened by a third party with "something very bad" unless they complied (a "morally impossible choice").
Excluded Offenses: Duress is a general defense but is categorically excluded for:
Murder.
Treason (certain types).
Complicity in murder.
Attempted murder.
Case Reference: Wilson (2007): A boy killed under instructions from his father, whom he feared. Despite the sympathetic facts, the defense of duress was excluded because the crime was murder.
Logical Inconsistency: Duress is available for Section 18 GBH (intentionally causing grievous bodily harm). If the victim survives, the defendant may be acquitted via duress. If the victim dies, the defendant faces a mandatory life sentence for murder as duress is suddenly unavailable.
Prior Fault and Voluntary Association: A defendant cannot rely on duress if they voluntarily put themselves in a position where threats were likely. This is a very expansive exclusion.
Sharp (1987): Defendant joined a gang known for robberies but didn't know they used guns. Defense blocked because he knew the gang was violent.
Shepherd (1987): Defendant joined a gang of shoplifters; threats of violence were seen as less foreseeable. The appeal was allowed, but this is now considered an outlier.
Heath (2000): A heroin addict in debt to a supplier was forced to drive a lorry of drugs. Defense blocked because his association with drug dealers made the potential for unpredictable violence foreseeable.
Hassan (2005): The seminal House of Lords case. Lord Bingham ruled that duress is excluded if the accused voluntarily associated with others engaged in criminal activity and "ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence." It is an objective test regarding the class of threats, not a specific threat.
Ali (2008): Merely knowing a third party often carried a knife was sufficient association to block the defense.
Elements of Duress by Threats
Requirement 1: The Nature of the Threat:
It must meet a threshold of seriousness: Death, Serious Injury, or Rape.
It is not a "balance of equals" test. A threat to burn down a house (though serious) is insufficient for duress, even if the demanded crime is minor (e.g., running a red light).
Psychiatric Injury:
Wilkins (1997): Suggested only physical threats qualify. However, given that psychiatric injury is now legally equated with GBH, modern courts might rule differently, though Wilkins remains the standing authority.
Requirement 2: External vs. Internal Threats:
Roger and Rose (1998): Prisoners attempted escape claiming they would commit suicide because the Home Secretary increased their tariff periods. The court rejected this; the threat must be external, not self-imposed.
Requirement 3: The Standard of Belief:
Must be an Objective Test. The defendant must possess an honest belief and that belief must be reasonable.
Graham (1982): Established that the belief must be that of a "reasonable, sober person" sharing the defendant’s characteristics.
Howe (1987): Confirmed the objective approach.
Martin (2000): An outlier case that momentarily suggested a subjective test, but subsequent cases like Safi (2003) returned to the objective requirement.
Requirement 4: The Target of the Threat:
Includes the defendant, immediate family, or a person for whom the defendant "would reasonably regard himself as responsible" (Hassan). This is usually interpreted broadly (e.g., a threat to a random passerby might suffice if the choice to save them is forced upon the defendant).
Requirement 5: Causation and Specificity:
The threat must be a key causal component, even if other factors are present (Valderrama-Vega).
Specificity: Historically, the threat had to be linked to a specific crime (Cole (1994)). In Cole, money lenders used violence to demand repayment; Cole robbed building societies to get the money. The court said duress failed because the lenders didn't specifically tell him to rob those societies.
The Requirement of Escapability and Operative Threats
Opportunity to Escape: If the defendant could have escaped the threat without offending (e.g., going to the police), the defense fails. The threat must be "operative" at the time of the crime.
Duration of Threat: If a defendant uses a stolen car to escape a tidal wave, the duress ends once they are safe. Continuing to drive the car for convenience after escaping the danger constitutes a new offense.
Imminency and Pushback:
Hudson and Taylor (1971): Two women lied in court (perjury) because gang members were in the gallery. The court generously allowed duress, acknowledging police protection might be insufficient.
Abdul-Hussein (1999): Iraqi citizens hijacked a plane to escape potential persecution. The court allowed the defense, using the "Gestapo" analogy: one doesn't have to wait for the knock on the door for the threat to be operative.
Hassan (2005): Specifically pushed back against this, requiring an "immediate or almost immediate" likelihood of the threat being carried out.
Requirement 6: Steadfastness (The Reasonable Person):
The law requires a standard of human fortitude. It is a "defense for human frailty, not for wimps."
Characteristics taken into account: Age, Sex (e.g., pregnancy/vulnerability), and physical disabilities or recognized psychiatric conditions.
Characteristics excluded: Low IQ (Bowen (1996)), personality disorders, or voluntary intoxication.
Duress of Circumstance
Logic: Recognized as a standalone defense since the 1980s. It borrows all its elements from duress by threats but does not require a specific person to make a demand.
Examples:
Willer (1986): Driving on a pavement to escape a gang of youths intent on attack.
Conway (1989): Reckless driving to escape what was believed to be a potential killer pursuing the car.
Martin (1989): Driving while disqualified because a suicidal wife threatened to kill herself if the son wasn't driven to work.
Jones (2006): Protesters at an airbase during the Iraq war claimed necessity/duress of circumstance to prevent international crimes. The House of Lords rejected this, partly because the "threat" must be to prevent a domestic crime (though this logic is criticized as suicide isn't a crime but still qualifies in the Martin case).
Public and Private Defense (Self-Defense)
Two Distinct Legal Sources:
Private Defense: Common law defense regarding protection of self, others, or property (largely codified in the Criminal Justice and Immigration Act 2008).
Public Defense: Section of the Criminal Law Act 1967, regarding the use of force in the prevention of crime or making a lawful arrest.
The Gateway: The defense only applies when the defendant has used force. It cannot be used for non-force offenses like theft or simple graffiti.
Prior Fault in Self-Defense: Much narrower than duress. Only blocked if the defense is "contrived"—where a defendant intentionally manipulates circumstances to provoke an attack so they can then use force under the guise of self-defense (Rochford (2010)).
The Trigger Element (Subjective):
The defendant must honestly believe force is necessary.
Gladstone Williams (1987): Williams attacked a man he thought was assaulting a youth (the man was actually a citizen arresting a pickpocket). The court ruled that even if the mistake is unreasonable, as long as it is honest, the trigger element is satisfied.
The Response Element (Objective/Hybrid):
The degree of force used must be objectively reasonable based on the facts as the defendant believed them to be (The Palmer Test/2008 Act).
Focus is on the force used, not the outcome. Shoving someone is reasonable; if they accidentally fall and die, the shove remains the point of analysis.
Leniency: The law recognizes the defendant may be acting under high stress. One cannot use "jeweler's scales" to measure the exact amount of force in the heat of the moment.
Exceptional Categories in Self-Defense
Householder Cases:
Created by the Crime and Courts Act 2013 (following the Tony Martin case).
In a householder context (burglar in the home), force is only unreasonable if it was grossly disproportionate.
In a standard case, "disproportionate" force is unreasonable. In a householder case, force can be disproportionate and still reasonable, provided it's not grossly so.
Intoxication:
Unlike the general rule, if the mistake as to the need for force was due to voluntary intoxication, the defendant cannot rely on it (O'Grady (1987); Hatton (2005)). The first limb of self-defense becomes an objective test: would a sober person have made that mistake?
Insanity and Delusion:
Oye (2013): Defendant hallucinated police were demons. The court ruled that where self-defense and insanity overlap, insanity should "trump" the other to ensure public safety through disposal options (compulsory treatment).
Taj (2018): Taj killed a man he believed was a terrorist. His delusion was potentially caused by a drinking binge prior. The court ruled that the "intoxication block" applies to psychotic delusions triggered by prior drink/drugs, even if the substances are no longer in the system.
Problem with Taj: The court suggested even a delusion from non-intoxicated insanity would block self-defense, forcing a defendant to meet a standard of reasonableness they are mentally unable to meet.
The Defense of Necessity
Conceptual Basis: A "balance of evils" defense. It is intentionally uncodified and remains a flexible common law "safety net."
Standard for Rejection: The courts are generally very hesitant to allow necessity (e.g., one cannot steal because they are hungry or run a red light because they are late for work).
Application: Frequently seen in medical contexts.
F v West Berkshire Health Authority (1989): Compulsory sterilization of a mental health patient was allowed because it was in the "best interests" of the patient, which is essentially a necessity argument.
Relation to Murder: Historically, necessity is not a defense to murder, but this will be explored in depth next week.