Necessity defences of self defence & duress of circumstances

• Duress


  This defence exists where D is put under considerable pressure to commit a crime or face death or serious injury to himself or another for whom he feels responsible
• Duress


  • D is essentially forced to make a difficult decision
  • The defendant commits the actus reus with the mens rea so the defence takes the circumstances into account
• Duress- case example:


  • R v Gotts (1982)
• Duress by threats


  This consists of direct threats to the defendant to commit a crime or face death or serious personal injury to themselves or another
• Duress of circumstances


  • This consists of external circumstances that the defendant believes constitutes a serious threat
  • There are some similarities to necessity here
• Test for duress


  1. Subjective test: did the defendant feel he had to act the way he did because he reasonably believed he would face death or serious personal injury

  2. Objective test: would a sober person of reasonable firmness with the same characteristics as the defendant respond in the same way as the defendant
• Duress


  • The threat must be of death or serious personal injury and the increasing effect of the threats can be considered by the courts
  • The threat must be unavoidable
• The defence of duress is not available for murder, manslaughter and treason
• Duress can take two different forms: duress by threats and duress of circumstances
• Necessity


  • This is a very limited defence as the Courts have generally not been prepared to accept it
  • Defendants are placed in a position where they believe they have to commit an offence to prevent a worse evil from happening
  • It has similarities with duress of circumstances
• Necessity- case example:


  • R v Dudley and Stephens (1884)
• Necessity


  • Where an act was done only to avoid consequences which could not otherwise be avoided
  • The consequences would have inflicted inevitable and irreparable evil
  • No more was done than was reasonably necessary for the purpose
  • The evil inflicted was not disproportionate to the evil avoided
• Following Southwark London Borough Council v Williams (1971), Lord Denning stated that allowing the defence of necessity would 'open a door that no man could shut' and would give an excuse for all types of behaviour
• The Law Commission in the Draft Criminal Code states: 'We are not prepared to suggest that necessity should in every case be a justification; we are equally unprepared to suggest that necessity should in no case be a defence.'
• Mistake


  Can only be used when it is a mistake of fact and not of law
• Mistake


  • Must be both reasonable and genuine with reference to appropriate authority
• Using the defence of mistake


  1. Mistake must be in the facts and not the law

  2. Mens rea of the offence must be made negative by the mistake

  3. Defence can be used where the defendant's actions can be excused or justified in some way

  4. A statute may also specifically provide for instances where the defendant has a 'lawful excuse'
• R v Tolson (1889)


  • Defendant thought her husband was dead and married someone else. Her conviction for bigamy was quashed as her actions were considered to be natural and legitimate by the court and in no way immoral. The court allowed the defence of mistake but did stress that the mistake had to be both reasonable and honest.
• DPP v Morgan (1976)


  • Defendant was a senior officer in the RAF and told three of his junior officers to go to his house and have sex with his wife. The court said that the belief only had to be genuine and not necessarily reasonable. Their convictions were still upheld.
• Mistake cannot be used as a defence when D is voluntarily intoxicated
• R v O'Grady (1987)


  • An intoxicated mistake regarding how much force could be used in self-defence, did not provide a defence.
• Consent


  A general defence normally used as a defence to non-fatal offences against the person. It can never be a defence to murder or euthanasia.
• R v Donovan (1934)


  • D caned a 17-year-old girl for sexual gratification, causing bruising. His conviction was quashed, as V had consented to the act.
• R v Slingsby (1995)


  • D was charged with involuntary manslaughter. D and V had taken part in 'vigorous sexual activity', which V had consented to. V's consent meant there was no battery or assault, so D was not guilty of manslaughter.
• True consent


  If the victim submits through fear this does not mean that consent is real
• R v Tabassum (2000)


  • D had persuaded women to allow him to measure their breasts for the purpose of compiling a database for sale to doctors. The women had only consented because they thought that D had a medical qualification or training.
• Olugboja (1982)


  • V and her friend had been raped by D's friend and when D tried to have sex with her, she submitted. The Court of Appeal held there was a difference between real consent and mere submission.
• R v Dica (2004)


  • Consent was given to sexual intercourse without knowledge of the fact that D was HIV positive. The Court of Appeal held that there was no consent to the risk of the infection.
• Implied consent


  The courts will consider that some injuries are impliedly consented to by everyone in society.
• R v Wilson v Pringle (1987)


  • The court held that ordinary 'jostlings' of everyday life were not battery. Sports injuries during properly conducted games and sports also fall into this category.
• R v Barnes (2004)


  • D made a tackle on the victim during an amateur football game. The Court of Appeal said that where an injury is caused during a match, a criminal prosecution should be kept for those situations where the conduct was sufficiently bad to be properly categorised as criminal.
• Consent is not a defence to a s47 Offences Against the Person Act 1861 offence (ABH) unless it falls within one of the exceptions listed in Attorney General's Reference (No. 6 of 1980) (1981)
• Attorney General's Reference (No. 6 of 1980) (1981)

  • The Court of Appeal held that consent could not be a defence to two men fighting in the street to settle their differences as it was not in the public interest.
• R v Brown (1993)


  • The House of Lords held that consent was not a defence to gay sadomasochistic acts, even though they were all adults and the injuries inflicted were minor.
• R v Wilson (1997)


  • The Court of Appeal held that, where D had branded his initials on his wife's bottom with a hot knife at her request, this was not an unlawful act, even though she had to have medical treatment for the burns caused.
• Mistaken belief in consent

  Provided the defendant genuinely believes the victim has consented, there is a defence to an assault even if they are mistaken in this belief.
• R v Jones (1986)


  • Two boys aged 14 and 15 were thrown into the air by older boys. The court decided that a genuine mistaken belief in consent could be a defence and that this fell into the recognized exception of rough horseplay.
• No one can consent to their own death
• If a terminally ill person wants to die, they must take their own life. If anyone kills them, it is murder. Even if someone helps them to take their own life, that person is guilty of the offence of assisting suicide.
• Self-defence


  Defence that covers actions needed to defend oneself from an attack, and also actions taken to defend another