Defences II

Defences in Criminal Law

Overview of Defences

• Defences in criminal law can be categorized as excusatory and justificatory:

  • Excusatory Defences: Such as duress, which fit under the standard of compulsion to commit a crime.

  • Justificatory Defences: Such as consent and self-defence, which argue the act was justified.

• Importance of the burden of proof:

  • The prosecution bears the legal burden of proving that a defence does not apply, while the defendant holds the evidential burden of raising the defence

Key Defences

1. Consent

   • Definition: Consent can negate the actus reus of an offence; however, there are limits on what a victim can consent to (notably bodily harm).

   • Key Points:

     • Informed consent from an adult may be valid.

     • Consent is treated similarly to self-defence in that it justifies an act otherwise viewed as illegal.

2. Self-Defence

   • Legal Framework: Governed by the Criminal Justice and Immigration Act 2008 (CJIA).

     • Section 76: Establishes the layers of self-defence, including the use of reasonable force.

   • Defensive Situations: Includes defending oneself, others, property, and preventing a crime.

     • The assessment of reasonable force is nuanced; it is both subjective (based on the defendant's belief) and objective (measured against what a reasonable person would do).

   • Key Cases:

     • Bird [1985]: No legal duty to retreat from an aggressor.

     • Keane [2010]: Established that an original aggressor may claim self-defence under certain conditions.

     • Martin (Anthony) [2003]: Confirmed that psychiatric conditions may not be considered when determining the reasonableness of force used in self-defence.

3. Duress

   • Definition: Duress involves being compelled to commit a crime to avoid significant harm or death, applicable when a threat is immediate and extreme.

   • Types of Duress:

     • By Threats: Direct threats made against the person.

     • Of Circumstances: A person feels compelled by external circumstances (e.g., fearing for their safety).

   • Key Legal Considerations:

     • The defence is difficult to establish. Key factors include:

       • The immediacy of the threat.

       • Whether D brought the threat upon themselves (voluntary association with criminals).

     • Important Case: Hasan [2005], which ruled that voluntary association with criminal activities negates the ability to claim duress.

Necessity

• Uncertain Existence: Necessity as a defence is contentious, normally not widely accepted in criminal law except in very specific circumstances.

• Definition: Claimed where the defendant argues they acted to prevent a greater evil, part of a moral justification.

  • Notable Case: Dudley and Stephens (1884-85), which questioned the application of necessity to the crime of murder.

• Key Principle: Necessity has been illustrated in medical cases such as Re A (Children), suggesting potential acceptance under specific circumstances, though still rare in criminal trials.

Summary of Key Cases

• Hasan [2005]: Duress cannot be claimed if defendant voluntarily enters a relationship with criminals.

• Re A (2001): Recognizes the potential for necessity as a defence but is limited to unique situations.

• Williams (Gladstone) [1987]: Established that defendants can use mistaken beliefs in self-defence, providing a subjective test under certain conditions.

Exam Tips

• Focus on the elements needed to establish each defence in exam scenarios.

• Properly allocate the burden of proof in assessments:

  • Prosecution must disprove the defence after the defendant raises it.

• When answering problem questions concerning duress, clarify both types and the necessity of immediate threats.