The defences which are available to any given offence depend on the wording of the
statute and rules of the common law. There are general defences.
Insanity,
automatism,
mistake and
self defence operate as defences to any offence. Inadvertence due to
intoxication is a defence to all offences requiring proof of
basic intent if the intoxication is involuntary, and in cases where the risk would not have been obvious to a reasonable and sober person and/or the defendant, if it is voluntary, and to offences that require proof of a
specific intent.
Duress and necessity operate as a defence to all crimes except murder, attempted murder and some forms of treason.
Marital coercion is a defence to all crimes except treason and murder. •
Connolly v DPP [2007] EWHC 237 (Admin) no Human Rights Act 1998 defence for sending graphic pictures of abortions, considered malicious •
Director of Public Prosecutions v Camplin [1978] UKHL 2, provocation, now
Coroners and Justice Act 2009 loss of control •
R v Oye [2013] EWCA Crim 1725 •
R v Quayle [2005] EWCA Crim 1415 •
R v Martin (Anthony) [2001] EWCA Crim 2245 •
R v Coley [2013] EWCA Crim 223 •
Re A [2001] 2 WLR 480 •
R v Hitchens [2011] EWCA Crim 1626 •
R v Howe [1987] AC 417 •
R v Ray (Steven)' [2017] EWCA Crim 1391
Partial defences to murder There are two main partial defences that reduce murder to manslaughter. If one succeeds in being declared "not guilty by reason of insanity" then the result is going to an asylum, a clearly inadequate result for somebody suffering from occasional
epileptic fits, and many conditions unrecognised by nineteenth century medicine. The law has therefore been reformed in many ways. One important reform, introduced in England and Wales by statute is the
diminished responsibility defence. The requirements are usually more lax, for instance, being "an abnormality of mind" which "substantially impair[s] mental responsibility for his acts and omission in doing or being a party to the killing." Loss of control may be pleaded under sections 54 and 55 of the
Coroners and Justice Act 2009.
Infanticide now operates as a defence to both murder and manslaughter. See the
Infanticide Act 1938 as amended by the
Coroners and Justice Act 2009.
Insanity 's ''
A Rake's Progress'', depicting the world's oldest
psychiatric hospital,
Bethlem Hospital Insanity is a deranged state of mind, and consequently no defence to strict liability crimes, where
mens rea not is a requirement. An old case which lays down typical rules on insanity is ''
M'Naghten's case'' where a man suffering extreme paranoia believed the
Tory party of the
United Kingdom, were persecuting him. He wanted to shoot and kill Prime Minister Sir
Robert Peel, but got Peel's secretary in the back instead. Mr M'Naghten was found to be insane, and instead of prison, put in a mental hospital. The case produced the
rules that a person is presumed to be sane and responsible, unless it is shown that (1) he was labouring under such a defect of reason (2) from disease of the mind (3) as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. These elements must be proven present on the
balance of probabilities. "Defect of reason" means much more than, for instance, absent mindedness making a lady walk from a supermarket without paying for a jar of mincemeat. A "disease of the mind" includes not just brain diseases, but any impairment "permanent or transient and intermittent" so long as it is not externally caused (e.g. by drugs) and it has some effect on one's mind. So epilepsy can count, as can an artery problem causing temporary loss of consciousness (and a man to attack his wife with a hammer). Diabetes may cause temporary "insanity" and even sleep walking has been deemed "insane". "Not knowing the nature or wrongness of an act" is the final threshold which confirms insanity as related to the act in question. In
R v Windle a man helped his wife commit suicide by giving her a hundred
aspirin. He was in fact mentally ill, but as he recognised what he did and that it was wrong by saying to
police "I suppose they will hang me for this", he was found not insane and guilty of murder.
Automatism Automatism is a state where the
muscles act without any control by the mind, or with a lack of consciousness. A successful automatism defence negatives the
actus reus element of a crime. If someone raises this defence, then it is for the prosecution to
disprove. Automatismic actions can be a product of
insanity, or not. One may suddenly fall ill, into a dream like state as a result of post traumatic stress, or even be "attacked by a swarm of bees" and go into an automatic spell. However to be classed as an "automaton" means there must have been a total destruction of voluntary control, which does not include a partial loss of consciousness as the result of driving for too long. Automatism can also be self-induced, particularly by taking medical treatment. Self-induced automatism can always be a defence to crimes of
specific intent (such as
murder, wounding or causing
grievous bodily harm with intent,
theft,
robbery and
burglary). But automatism is no defence to other crimes (i.e. of
basic intent, e.g.
manslaughter,
assault and
battery) if the defendant was reckless in becoming automatismic
or it happens through
alcohol or
illegal drugs. Only where the defendant does not know his actions will lead to an automatismic state where he could harm something can self-induced automatism be a defence to these crimes. For example, in
R v Hardie Mr Hardie took his girlfriend's
Valium, because she had just
kicked him out and he was
depressed. She encouraged him to take them, to make him feel better. But he got angry and set fire to the
wardrobe. It was held that he should not be convicted of
arson because he expected the Valium to calm him down, and this was its normal effect. Important cases include: •
Hill v Baxter [1958] 1 QB 277, dangerous driving, when automatism possible
Intoxication Technically, intoxication is not a defence, but negates the mens rea for
specific intent offences (e.g. it commutes a murder sentence to manslaughter). In other words, a defendant may have been so drunk, or drugged, that he was incapable of forming the criminal intention required. Voluntary intoxication is considered
reckless, a state of basic intent, which means one cannot have one's sentence reduced for crimes of basic intent (e.g. manslaughter, assault, etc.). So for instance, in
R v Sheehan and Moore two people threw
petrol on a
homeless person and set
fire to him. They were cleared of murder, but were still convicted of
manslaughter, since that is a crime of basic intent. Of course, it can well be the case that someone is not drunk enough to support any intoxication defence at all. On the other hand, if someone becomes involuntarily intoxicated, because his drink is laced or spiked, then the question is whether the normal
mens rea was present at the incident's time. So where a
blackmailer drugged a man's
coffee, invited him to
abuse a 15-year-old boy, and photographed it, the man was denied the defence of intoxication because the court simply did not believe that the man did not intend to commit the abuse. Sometimes intoxicated people make mistakes, as in
R v Lipman where the defendant took
LSD, thought his girlfriend was a
snake and strangled her. Here, intoxication operated as a defence because Mr Lipman was mistaken in his specific intent of killing a snake. But intoxication does not negate the basic intent crime of manslaughter, with his "reckless course of conduct" in taking drugs. Lastly, while a mistake about a person or the actual action is acceptable, a mistake about how much force to use to defend oneself is not. Using a
sledgehammer to fend off an "attacker" after 20
pints of
beer is disproportionate. Important cases include: • ''
R v O'Grady'' [1987] QB 995 voluntary intoxication
Mistake Important cases include: •
Williams (Gladstone) [1987] 3 All ER 411, mistake of fact depends on reasonableness
Self defence In all instances one may only use reasonable, and not excessive, force in
self defence. In
R v Clegg a soldier in
Northern Ireland shouted at a car approaching a checkpoint to halt. When it did not, Mr Clegg fired three shots, killing a woman. She was hit in the back, and Mr Clegg was sentenced for murder because by then the car had passed, the force was excessive and there was no justification for self-defence. Another way of expressing the rule on defensive force is that it must be proportionate to the threat. For instance, as the notorious case of
R v Martin shows, shooting a teenager in the back with a shotgun several times as he tries to escape is not a justified or proportionate exercise of self-defensive force for the
Norfolk farmer, even if robbers had
trespassed on his
property. In that case, Mr
Martin was found to have
diminished responsibility for his actions, because he was mentally ill.
Duress One who is "under duress" is forced into something. Duress can be a defence for all crimes, except
murder,
attempted murder, being an accessory to murder and
treason involving the death of the Sovereign. In
R v Howe it was held that to allow the defence of duress as a defence to murder would, in the words of Lord Hailsham, withdraw the protection of the criminal law from the innocent victim and cast the cloak of its protection upon the coward and the poltroon - ordinary people ought to be prepared to give up their lives to the person making the threat in preference to killing an innocent.
R v Gotts, in a similar fashion, disallowed the defence of duress for someone charged with attempted murder, as the Lords could not see a reason why the defence should be open to an attempted murderer when it was not open to a murderer. In order to prove duress, it must be shown that the defendant was induced by threats of death or serious physical injury to either himself or his family that he reasonably believed would be carried out and that also that "a sober person of reasonable firmness, sharing the characteristics of the accused" would have responded in the same way. Examples of someone's characteristics that might be relevant are age, gender, pregnancy, physical disability, mental illness, sexuality, but not IQ. Using duress as a defence is limited in a number of ways. The accused must not have foregone some safe avenue of escape. The duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it, because that choice implies free will. Intoxication is irrelevant to duress, but one cannot also say one is mistaken about duress, when intoxicated. Then a number of cases turn on the choice to join a gang, and inevitably do bad things. The rule is that where one is aware of the gang's nature and puts himself in a position where he could be threatened, duress is not a defence - joining a gang that carries out armed robberies probably precludes any duress defence but joining a gang that is not violent at the time of joining may not. Important cases include: •
R v Hasan [2005] UKHL 22, duress, threat of serious injury
Necessity '' Whilst a duress defence relates to the situation where a person commits an offence to avoid death or serious injury to himself or another when threatened by a third party, the defence of necessity related to the situation where a person commits an offence to avoid harm which would ensue from circumstances in which he/she or another are placed. Duress operates as an excuse but necessity operates as a justification, rendering the defendant's conduct lawful. Necessity is a defence that argues "I desperately needed to do X, because consequence Y would have been really bad." Logically, this is identical to the concept of "duress of circumstance", where the situation rather than a person is the threat. The common elements are (1) an act is done to prevent a greater evil (2) the evil must be directed to the defendant or someone for who he is responsible (3) the act must have been a proportionate response. But only necessity is a potential defence for
murder. The defence of necessity was first tested in the 19th century English case of
R v Dudley and Stephens. The
Mignotte, sailing from
Southampton to
Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy close to death. Driven to extreme hunger, the crew killed and
ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives.
Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to
hang, but public opinion, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the
Crown commuted their sentences to six months. Since then, in the 1970s, in several road traffic cases, although
obiter dicta, it has been stated that there is a defence of necessity. In
Johnson v Phillips [1975], Justice Wein stated that a police constable would be entitled to direct motorists to disobey road traffic regulations if this was reasonably necessary for the protection of life or property. In a later case,
Woods v Richards, Justice Eveleigh stated that the defence of necessity depended on the degree of emergency which existed or the alternative danger to be averted. In
DPP v Harris a police officer, charged with
driving without due care and attention through a red traffic light contrary to s 3 of the
Road Traffic Act 1988, and having collided with another vehicle containing armed robbers whilst pursuing that vehicle, was not allowed to advance the defence of necessity. Again in Chicon v DPP [1994] the defence of necessity was not allowed in a case of a pit bull terrier dog being kept in a public place without a muzzle - the owner had removed the muzzle to allow the dog to drink. But in the case of
In re F (Mental Patient Sterilization), the defence of necessity was allowed. In the case of
R v Bournewood Community and Mental Health NHS Trust, the defence of necessity (in the case of Tort law) was recognised and applied by the House of Lords to justify the informal detention and treatment of a mentally incompetent person who had become a danger to himself. This approach was subsequently found to be a violation of Article 5 of the European Convention of Human Rights by the European Court of Human Rights in
HL v United Kingdom. Subsequent to this decision, individuals who lack capacity must be deprived of their liberty in accordance with the Deprivation of Liberty Safeguards (an amendment to the Mental Capacity Act 2005), not under the common law doctrine of necessity. But more recently, duress of circumstance and necessity have been recognised and used by courts. In a leading case,
Re A (Conjoined Twins),
conjoined twins were born, one reliant on the other for her heart and lungs. Unless they were separated, both would die, but if separated, the reliant twin would die, the doctors therefore being liable to prosecution for murder. It was, however, held that in this special and incredibly sensitive situation, that the separation was necessary to save the first twin's life. ==Procedure==