criminal law defenses to crime

8/16/2019 Criminal Law Defenses to Crime

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DEFENCE

Self-defence

Is the use of reasonable force against an unjust threat. It is also a complete defence of justification in

cases involving all levels of assaults.Reasonable force can be defined as the minimal force required

preventing an assault from occurring or being repeated.

In the case of Beckf ord v R (1988 ) the defendant, a police officer shot dead a suspect, having been told

that he was armed and dangerous. When that man ran out of a house towards him, the defendant shot

him because he feared for his own life. The prosecution case was that the victim had been unarmed and

thus presented no threat to the defendant. Lord Griffith said:"A man about to be attacked does not have

to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a strike.

A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and

his property.’’

In the case of R v Rose (1884) , where the defendant who had shot dead his father whilst the latter was

launching a murderous attack on the defendant's mother, was acquitted of murder on the grounds ofself-defense. Use of deadly force is never justified to protect Personal Property other than a dwelling.

For example, a person would not be justified in shooting a person who is taking an automobile, no

matter how expensive. Reasonable force may be used to protect such personal property.

In R v Hussey (1924), the defendant was barricaded in his room while his landlady and some

accomplices were trying to break down his door to evict him unlawfully. The defendant had fired a gun

through the door, and wounded one of them. He was acquitted of the wounding charge on the grounds

of self-defense. It was stated that it would be lawful for a man to kill one who would unlawfully

disposes him of his home.


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In the case of R v O'Grady [1987] the defendant woke from a drunken stupor to find his equally drunk

friend hitting him. In order to defend himself he retaliated with several blows and then returned to

sleep. He awoke to find his friend dead. The defendant was convicted of manslaughter and appealed

against conviction, relying on the defence of self-defence in the circumstances as he mistakenly

believed them to be. The Court of Appeal dismissed the appeal and said that a mistake arising from

voluntary intoxication could never be relied on in putting forward a defence.

A defendant who successfully invokes self-defence may be found not guilty or not liable. If the

defendant's self-defence was imperfect, the self-defence may only reduce the defendant's liability.

Imperfect self-defence is self-defence that was arguably necessary but somehow unreasonable.

INSANITY

DEFENCE OF INSANITY

The defense of insanity is concerned with the defendant’s mental condition at the time the alleged

offence. At that time he may be suffering a permanent or occasional mental malfunction. Every man is

presumed to be sane until the contrary is proved.It must be clearly proved that at the time of the commission of the act the party accused was labouring

under such a defect of reason, from the disease of the mind 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 what he was doing was wrong.

The defence of insanity is contained in the M'Naghten rules ( M 'Naghten' s Case (1843) 10 Cl& F 200 ),

which today operate largely as a restriction on what might otherwise be a complete defence based on

lack of mensrea or automatism.

The defence is concerned with the defendant’s legal responsibility at the time of his alleged offence,

and not simply with whether he was medically insane at that time. In other words, it is concerned with

insanity in a legal sense, and not in a medical sense.


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What the law regards as insanity may be far removed from what would be regard as insanity by a

doctor. The issue of whether the defendant has the defence of insanity is a matter for the jury to decide

in the light of the medical and other evidence.

Mental illness short of insanity under the M'Naghten rules cannot in itself affect the liability of the

defendant; the only exception is the offence of murder where it may give rise to the qualified defence

of diminished responsibility.

The doctrine laid down in the M'Naghten's Case is that:

“The Jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a

sufficient degree of reason to be responsible for his crimes, until the contrary is proved to their

satisfaction; and that, to establish a defense on the ground of insanity, it must be clearly proved that, at

the time of the committing of the act, the party accused was laboring under such a defect of reason,

from disease of the mind, 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 ”

In order to succeed with his defence of insanity the defendant must prove the following requirements:

1- Disease of the mind

Here, the defendant must show that he was suffering from a “disease of the mind” in the legal sense of

that term when he did the prohibited act. The disease must be of the mind; it need not be of the brain as

per Kemp [1957] 1 QB 399.

2- Defect of reason

Here, a deprivation of reasoning power is required. The defendant must prove that he was suffering

from a “defect of reason” due to disease of the mind.

A “defect of reason” is more than a momentary confusion or absent - mindedness.

As per Clarke [1972] 1 Al l E R 219 the Court of Appeal held that even if the other elements of the rules


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were satisfied, there was no defect of reason but at most a mere Ab-sent-minded failure to use the

powers of reasoning that the accused undoubtedly still possessed and thus the accused was entitled to

have the simple defense of lack of mensrea considered by the jury rather than the defense of insanity.

3- Ignorance of nature and quality of act or that is wrong

The defect of reason due to disease of the mind must affect legal responsibility, something to which a

person’s capacity to appreciate what he was doing, and whether it was lawful is highly relevant and the

defendant must go on to prove that because of his defect of reason due to disease of the mind either he

did not know the nature and quality of his act or, if he did know this, he did not know he was doing

wrong.

This defense is stipulated in the case of;

R v Kemp [1957]

The defendant during a blackout attacked his wife with a hammer causing her grievous bodily harm.

The medical evidence showed that he suffered from arterial-sclerosis, a condition which restricted the

flow of blood to the brain. This caused a temporary lapse of consciousness. Devlin J ruled that for the

purposes of the defense of insanity, no distinction was to be drawn between diseases of the mind, and

diseases of the body affecting the operation of the mind. Also, it was irrelevant whether the condition

of mind was curable or incurable, transitory or permanent. The jury returned a verdict of guilty but

insane. Devlin J said: 'The law is not concerned with the brain but with the mind, in the sense that

"mind" is ordinarily used, the mental faculties of reason, memory and understanding.

'Insanity is relevant at three points:

1. Insanity before trial 2. Unfitness to plead and 3. Insanity at the time of the offence


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1. Insanity before trial

Where the offender is in custody but is obviously insane, the Home Secretary has the power to detain

him immediately in a mental hospital. Confirmation from two doctors of the offender's state of mind is

required.

2. Unfitness to plead

The question of unfitness to plead may be raised by the defence, prosecution or the judge. A special

jury is empanelled to decide if the defendant is unfit to plead. R v Pr itchar d(1836) 7 C& P 303

The defendant was deaf and mute. Alderson B set the test to apply in deciding fitness to plead: “There

are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly,

whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to

comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he

might challenge any of you to whom he may object - and to comprehend the details of the evidence,

which in a case of this nature must constitute a minute investigation."

The jury were directed that there were to find him unfit to plead if in their opinion there was no certain

mode of communicating the details of the trial to the prisoner, so that he could clearly understand them,

and be able properly to make his defence to the charge.

3. Insanity at the time of the offence

Insanity at the time of the offence is determined by application of the following rules:

i). A defect of reason.

ii).The defect must be caused by a disease of the mind.

iii). The defect of reason must be such that the defendant did not know what he was doing or, if he

did know, he did not know the act was wrong.


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MISTAKE

A mistake is a defense when it is mistake of facts. A mistake of law is no defense hence the maxim

ignoranciajuris non excusa . A mistake of fact is an incorrect conclusion reached by the offender in his

mental process. A mistake of fact can be in form of 2 types:

i. Where the offender lacks knowledge either of complete blankness on that knowledge or there is

no knowledge on that subject

ii. Where there is knowledge which is false

If a person commits an offence due to lack of knowledge in that area or the knowledge was false, he

can raise a defense of mistake of facts. Section 10 of the penal code provides for mistake of fact as a

defense. For the accused person to benefit from this defense of mistake of facts, he must hold that

mistake of fact honestly. This was ascertained in the case of Musa v R (1970) EARL 120.

On the other hand a mistake is a defense because it prevents the accused person from having the

mensrea which the law requires for a crime which offender is charged i.e. where the law requires

intention or recklessness with respect to actus reus, then mistake becomes a defense as the accused

does not have that state of mind.

Where negligence is require as mensrea, a mistake will negate that negligence since accused will not

have a standard to be used against his actions

MISTAKE OF LAW

A mistake of fact may sometimes mean, that while a person has committed the physical element of an

offence, because they were laboring under a mistake of fact, they never formed the required mensrea,

and so will escape liability for offences that require mensrea. This is unlike a mistake of law, which is

not usually a defense.


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There is a general rule that ignorance of the criminal law is no defense, even if the ignorance is

reasonable in the circumstances.

By way of contrast to mistake of criminal law, mistake of civil law can quite easily provide a defense to

a criminal charge, provided the actusreus of the offence involves proof of a legal concept. Like the case

of R v Smith [1974] QB 354 . The defendant was the tenant of a flat. With the landlord's consent he

installed some hi-fi equipment and soundproofing. When given notice to quit the flat, the defendant

tore down the soundproofing to remove some wires that lay behind. Unknown to the defendant the

soundproofing had, as a matter of civil law, become a fixture of the property and therefore property

belonging to the landlord. The defendant's conviction for criminal damage was quashed by the Court of

Appeal. It was held that no offence is committed if a person destroys or damages property belonging to

another if he does so in the honest though mistaken belief that the property is his own.

MISTAKE OF FACT

A) MENS REA OFFENCES

It is clear from that a mistake of fact, rather than law, is a defense where it prevents the defendant from

forming the mensrea which the law requires for the crime with which he is charged.

B) NEGLIGENCE

Where the law requires only negligence, then only a reasonable mistake will lead to a defense: an

unreasonable mistake is one which a reasonable man would not make and is, therefore, negligent.

For example: A defendant goes into a supermarket and places eight items in a basket which is

presented to the cashier for payment in the usual way. Both honestly believe that all eight items have

been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices

that a mistake was made by the cashier so that only seven items were actually priced. This detective


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arrests the defendant after leaving the store. Since the defendant honestly believes that he has become

the owner of goods in a sale transaction, he cannot form the mensrea for theft (which is usually

dishonesty) when he physically removes them from the store. Accordingly, he has not committed a

crime. However, not all crime requires true mensrea. Mistake of fact may not protect someone accused

of a crime of negligence or crimes of strict or absolute liability.

C) STRICT LIABILITY OFFENCES

If no mensrea is required with regard to one element of the actusreus then even an honest and

reasonable mistake with regard to that element will not negative liability. For example, see the case of

R v Prince (1875) . The defendant took a girl under 16, believing on reasonable grounds that she was

18, out of the possession of her parents. The defendant was convicted and the conviction affirmed.

D) DRUNKEN MISTAKE

Where a defendant's mistake of fact arises from self-induced intoxication, it will only provide a defence

to crimes of specific intent. In general, where a defendant is charged with a basic intent crime, the jury

will be directed that evidence of self-induced intoxication is irrelevant to the question of what the

defendant believed to be happening. See for example in the case of

R v Woods (1981) 74 Cr A pp R 312 . The defendant was convicted of a collective rape of one girl. He

made admissions of his part in it to the police but at his trial he went back on those admissions and said

in effect that he had so much to drink that he was not sure what had happened. He did not know

whether he had raped her or not and did not realize that she was not consenting to anything that went

on. Griffiths LJ stated: "The law, as a matter of social policy, has declared that self-induced

intoxication is not a legally relevant matter to be taken into account in deciding as to whether or not a

woman consents to intercourse."


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R v F otheri ngham [1988] Cri m L R 846 . The defendant got into his own bed after coming home from a

party and forced the baby-sitter (who was already in the bed) to have sexual intercourse. He claimed

that he was so drunk that he thought the girl was his wife. The Court of Appeal upheld his conviction.

It was held that: (1) self-induced intoxication cannot be used as a defence to a crime of basic intent and

stated that

(2) Neither could the defence of mistake be raised, if this mistake were caused by self-induced

intoxication:

R v O' Grady [1987] 3 WLR 321.

E) BURDEN OF PROOF

Whilst there is always an evidential burden on the defendant to put evidence before the jury that he did

actually make the mistake upon which he relies, the legal burden always rests with the prosecution to

establish beyond reasonable doubt that the defendant was not mistaken and therefore did have the

requisite mensrea for the offence with which he is charged.

F) EFFECT

As is the case in any trial where the prosecution fails to establish mensrea, if the defendant succeeds

with his defense of mistake he must be acquitted.

DURESS

Duress is the impulsion of a person to undertake an action against his or her will by the threat of

physical or economic harm. The defense of duress can be made when the defendant has been forced to

commit a criminal act by another person.

Duress is a defense to most offences if the allegedly criminal act was committed due to a threat of


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physical harm if the act is not done. The situation must have been such that the accused’s will was so

forced that they became a mere innocent instr ument of the criminal offending. The accused’s act can be

seen to have been induced by a threat made by a third person.

The defense, termed “compulsion” in the legislation, is codified in section 16 of the penal code (Cap

26) as follows:

A person is not criminally responsible for an offence if it is committed by two or more offenders, and if

the act is done or omitted only because during the whole of the time in which it is being done or

omitted the person is compelled to do or omit to do the act by threats on the part of the other offender

or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future

injury do not excuse any offence.

The rationale for the defense is that if a person is faced with a situation where they are compelled by

wrongful threats to act in a criminal way in order to avoid a grave harm to themselves, they cannot be

said to have acted voluntarily in committing the offence, and therefore should escape criminal liability.

Case: In R v Cawa ,The fir st defendant, Ronny Cawa, described as the ‘boss Commander’ of the GLF,

was charged with the murder of the three brothers on the first day and the ordering of the death of the

three Brothers on the second day. He accepted that he shot the three brothers and ordered the shooting

of the others, but claimed that he was acting in self-defense at the time.

The second defendant was charged with murder on the basis that he was an active participant in the

beating that led to the death of one of the Brothers. The second defendant claimed that at the time of

the murders he was acting under compulsion. And the court accepted without referring to any previous

cases.

There are five different requirements that must be met in order for duress to be raised.

1. The defendant must have actually been threatened.


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2. The threat must have been of death or serious bodily harm.

3. The threat must have been made against another person.

4. The threat must be of immediate harm. Threats of future harm, no matter how serious they are, are

not enough to give rise to this defense.

5. It must be shown that the defendant had no opportunity to avoid the threat by a non-criminal method.

According to common law doctrines of criminal liability which is also applicable in Kenya, the defense

of compulsion does not apply to the crimes of treason and murder. For example, if X is compelled to

kill at a point of a gun directed at him by Y, then X has a good defense. In contrast, in Regina v. Howe

(The times of 20 th February, 1987) , the house of lords decided that the defense of duress was not

available to a person with murder, whether as a principle in the first degree (the actual killer) or as a

principal in the second degree (an aider and abettor). Their lordships departed from their previous in

D.P.P. for nor thern I reland v. lynch, (1975) A.C. 653 , that duress is available to an aider and abettor

to a murder.

A married woman (whether or not of monogamous marriage or under customary law) has the defense

of compulsion if she commits a crime in the presence of any any other coercion of the husband ( penal

code section 19).

INTOXICATION

Definitions;

1. Stimulation, excitement, or stupefaction caused by a chemical substance, or as if by one.

2. Substance i.e., especially due to ingestion of alcohol.

3. Poisoning; the state of being poisoned.

substance intoxication reversible, substance-specific, maladaptive behavioral or psychological


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changes directly resulting from the physiologic effects on the central nervous system of recent

ingestion of or exposure to a psychoactive substance, particularly alcohol.

Test of a defense of intoxication

The court can take into account the degree of intoxication of the accused when determining whether it

has been proved that the accused had formed the intent to bring about a specific result.

1. Foreseeability test

The presence or absence of liability may be said to hang on a foreseeability test. The fact that the

consumption of alcohol or the ingestion of drugs may cause a loss of control is well-known. Thus,

anyone who knowingly consumes is, at the very least, reckless as to the possibility of losing control. If

they did not wish to lose control, they would not consume, so loss of control must be within the scope

of their intention by continuing to consume. But, loss of control is not instantaneous and without

symptoms.

The issue of involuntary consumption is therefore contentious. Involuntary loss of control is limited to

cases where there is no real loss of control with noticeable symptoms. Thus, for example, in many

states, the blood alcohol level for the commission of the offence of driving under the influence is set

sufficiently low that people might exceed the limit without realizing that they had consumed enough

alcohol to do so. Leaving aside the issue that, in some states, this is a strict liability offense excluding

drunkenness as a defense, there is usually a requirement that the person who "spiked" the drinks be

prosecuted in place of the driver. This reflects the fact that the commission of a crime has been

procured by the actions of secretly adding the alcohol and the practical fact that without this rule, too

many accused who are only marginally over the limit, might be encouraged to blame others for their

intoxication. More generally, the defense would be denied to people experiencing symptoms of

intoxication who continued to consume the spiked drink because they ought to have known what was

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happening to them. Equally, if no further consumption occurred but they ought to have recognized that

they were affected by an unknown substance, beginning an activity such as driving would not fall

within the defense. In other words, the policy underpinning the operation of the law favors the

protection of the public as against the interests of an individual who recklessly or with willful blindness

exposes the public to danger.

Offenses of basic and of specific intent

In some states, a distinction is based on the nature of the mensrea requirement. While voluntary

intoxication may not be a defense to an offense of basic (sometimes termed "general") intent, it is

allowed as a defense to offenses requiring a specific intent . This term refers to two separate types of

offense:

1. Some offenses are based on basic intent where the mensrea is no more than the intentional or

reckless commission of the actusreus . But a limited number of offenses are defined to require a further

element in addition to basic intent, and this additional element is termed specific intent .

2. The inchoate offenses such as attempt, solicitation, and conspiracy require specific intent in a

slightly different sense. The test for the existence of mensrea may be:

(a) Subjective where the court must be satisfied that the accused actually had the requisite mental

element present in his or her mind at the relevant time (see concurrence );

(b) Objective where the requisite mensrea element is imputed to the accused on the basis that the

reasonable person would have had the mental element in the same circumstances;

(c) hybrid where the test is both subjective and objective.

The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to

society. If an accused has actually committed the full offence, the reality of the danger has been

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demonstrated. But, where the commission of the actusreus is in the future, a clear subjective intention

to cause the actusreus of the full offense must be demonstrated. Without this "specific intent", there is

insufficient evidence that the accused is the clear danger as feared because, at any time before the

commission of the full offense, the accused may change his or her mind and not continue.

If a "specific intent" in either sense is required and there is clear evidence that the accused was too

intoxicated to form the element subjectively, this fact is recognized as a defense unless the loss of

control was part of the plan. But this is of little value to defendants since there are almost always

offenses of basic intent that can be charged and/or the basic intent offenses are usually lesser included

offenses and an alternative verdict can be delivered by judge or jury without the need for a separate

charge. For example in the case of ; Jaggard v Dickinson [1980] 3 All ER 716 which held that, for

the purposes of the statutory defense of lawful, a drunken belief will found the defense even though this

allows drunkenness to negate basic intent. This is limited authority and does not affect the generality of

the defense.

Examples of specific intent crimes include first degree murder based on premeditation and deliberation,

attempts, burglary (intent to commit larceny), larceny (intent to steal), possession of or receiving stolen

property (intent to steal), and robbery (intent to steal). General intent crimes include arson, rape, etc

Not a defence, more a denial of mensrea

A defendant can only benefit from a defence based on voluntary or involuntary intoxication if the court

is convinced that because of being intoxicated the defendant lacked the required mensrea, R v Kingston

[1994] HL .

Policy issue

If a defendant could simply claim intoxication as a defence, and be completely exonerated every crook

would have a drink before a crime spree, and then, when arrested claim intoxication and be

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automatically acquitted.

DPP v Majewski (1977) HL

In Majewski it was contended that if intoxication affected the mind of the defendant it was illogical and

unethical to distinguish between its effect on one state of mind and on another.

It was argued that there is no permissible distinction between offences of basic intent and those of

specific intent.

The Crown contended that that distinction had nevertheless represented the law of England for many

years. The House upheld the Crown's contention. It did so in the full knowledge that it was not

perfectly logical. It so held, in large measure, on grounds of policy .

As was observed by several of their Lordships, historically the law of England regarded voluntary

intoxication as an aggravation rather than a potential excuse and the development of the law had been

by way of a partial, but only a partial, relaxation of that common law rule where a specific intent was

required.

Dutch Courage Rule

Where D fortifies himself with alcohol to gain the courage to commit a crime this is known as Dutch

Courage and is no defence.

The courts comp licated the rules on intoxication by distinguishing between ‘dangerous drugs’

and 'non dangerous drugs' in R v Bail ey [1983] CA A defence based on automatism caused by

hypoglycaemia failed (the same argument could have been used for the effects of alcohol).

Held :" In our judgment, self-induced automatism, other than that due to intoxication from alcohol or

drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the

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prosecution has provided the necessary element of recklessness. In cases of assault, if the accused

knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled

with the result that he may cause some injury to others and he persists in the action or takes no

remedial action when he knows it is required, it will be open to the jury to find that he was reckless."

R v H ardie [1985] CA the court considered an accused, charged with an offence of Criminal Damage:

He had taken a number of Valium tablets (which were prescribed for someone else). Held : That this

did not necessarily amount to voluntary intoxication.

NECESSITY AS A DEFENSE

A necessity may be claimed as a defense when a defendant reasonably believed that his or her criminal

act was immediately necessary to avoid imminent harm. The reasonableness of the defendant's act and

the harm that was sought to be avoided by the defendant are the essential elements of the defense. The

defendant must show that the harm that he or she sought to avoid was greater than the harm that was

committed by his or her criminal act. In other words, the defendant must show that he or she was

attempting to achieve a "greater good."

The defense of necessity is different from the defense of duress. The defense of necessity arises when

the forces of nature compel a defendant to commit a criminal act. The defense of duress arises when

another person compels the defendant to commit the criminal act. The defense of duress is a more

specific affirmative defense than the defense of necessity. The defense of duress also requires a higher

burden of proof for the defendant.

A defendant claiming the defense of necessity must prove that he or he reasonably believed that his or

her criminal act was immediately necessary to avoid imminent harm. A mere suggestion of the

possibility of harm is not sufficient for the defense. Also, if the threat of harm has been avoided or has

passed, the defense does not apply.

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A defendant claiming the defense of necessity must also prove that the harm that he or she sought to

avoid clearly outweighed the harm that was committed by the defendant's act. This element must be

proved according to the standards that an ordinary and a reasonable person would have used under the

circumstances. The standards are objective. They are not measured by the defendant's own moral or

ethical standards. The standards are a question of fact for a jury.

The defense of necessity does not apply if the legislature has specifically excluded certain offenses

from the defense. Examples of such exclusions include the medical use of marijuana, possession of a

weapon in a penal institution, or economic necessity as a justification for the commission of an offense.

Whether there is a legislative exclusion is a question of law for the determination of a trial court and

not a jury.

In order to assert the defense of necessity, a defendant must admit that he or she committed the offense

with which he or she is charged. If the defendant has asserted other defenses and if there is evidence to

support those other defenses, the defendant may deny some of the elements of the offense.

Whether a defendant is entitled to a jury instruction on the defense of necessity is a question of law for

a trial court. The trial court may determine whether the defendant's beliefs and standards were

reasonable as a matter of law. The defendant may not be entitled to a jury instruction on the defense if

he or she provoked the harm, if he or she placed himself or herself in the situation that created the

harm, or if his or her own recklessness or negligence created the harm.

In Englishlaw , the defense of necessity recognizes that there may be situations of such overwhelming

urgency that a person must be allowed to respond by breaking the law. There have been very few cases

in which this defense has succeeded. However, the Crown Prosecution Service tends to choose not to

prosecute those cases where it believes potential defendants have acted reasonably in all the


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circumstances. This defence was used in the early trial of Regina v. Dudley & Stephens (1884) 14

QBD 273 DC , where four shipwreckedsailors were cast adrift in a small boat without provisions. To

save themselves, the three strongest decided to eat the fourth, the 17 year -old cabin boy. The court

ruled that cannibalising the boy was not urgently necessary. Even though the cabin boy would almost

certainly have died of natural causes, the sailors killed the boy intentionally and were guilty of murder.

There was some degree of necessity arising from the threat of starvation but, at any moment, a ship

could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could

never be sure that the killing was actually necessary from one minute to the next, the defence was

denied. Cannibalism itself is not an offence so long as the death occurs naturally.

Dudley and Stephens were convicted of murder and sentenced to be hanged, however their sentence

was later reduced to just six months in prison. The fourth man, Brooks, was not tried, as he had not

participated in the murder. The principles from this case form the basis of the defence of necessity not

being available for murder.

The principles

There must be an urgent and immediate threat to life which creates a situation in which the defendant

reasonably believes that a proportionate response to that threat is to break the law. This reflects the

distinction between the defenses of necessity and duress in that the former is pressure of circumstances

arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will

of the defendant. The general approach was laid down by Lord Denning in Southwark London

Borough Council v Williams (1971) 2 AER 175 that necessity should be denied as a general defense

because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of

necessity, any poor person might seek to justify burglary to steal food by arguing that he or she had

reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact

that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty


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(e.g. by seeking welfare support or charity), would deny the defense of necessity. The Canadian courts

put the issue succinctly. In Perka v The Queen (1984) 2 SCR 232, Dickson J . held at p250 that

"If the defense of necessity is to form a valid and consistent part of our criminal law it must, as has

been universally recognized, be strictly controlled and scrupulously limited to situations that

correspond to its underlying rationale."

When considering necessity in R v Cole (1994) Crim. LR 582 Simon Brown LJ, it was held that the

peril relied on to support the plea of necessity lacked imminence and the degree of directness and

immediacy required of the link between the suggested peril and the offense charged. This defendant

robbed two building societies in order to repay debts. The form of defense was "duress by

circumstance" which attempts to extend the coverage of duress by borrowing the idea of an

uncontrollable external circumstance forcing a choice by the defendant to break the law.

Medical necessity

In Quayle and Others v R; Attorney General's Reference (No. 2 of 2004) (2005) EWCA Crim1415

each defendant appealed convictions associated variously with the cultivation or possession of cannabisresin to be used for pain management. The choice facing the appellants was not severe pain without

cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects

without cannabis, and absence of pain with minimal side effects with cannabis. The difference was

restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a

prima facie possibility of serious injury, let alone one such as would overwhelm the will of the

defendant. There was no evidence from an objective stand point that the appellants were acting

reasonably and proportionately to a threat of injury. The evidence was clear that it was possible for the

appellants to control pain by conventional and legal means. Further, for the defence of necessity to

succeed, the threat of injury must be immediate and imminent, and come from an extraneous source.


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The parties were responding to continuous pain over a period of time and, in any event, pain is too

subjective to qualify as an external threat. There was nothing urgent that overwhelmed their will to

resist. The parties then argued that the law breached Article 8 European Convention on Human Rights

by interfering with the right of privacy. Interference with the right of respect for private life is

permissible under Article 8(2) if "in accordance with the law and . . ..necessary in a democratic society

. . ... for the prevention of disorder or crime, for the protection of health or morals, or the protection of

the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County

Council (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and

scientific evidence, but their conclusion was that this was a policy matter more properly within the

remit of the relevant Minister. Thus, this unlawful self -help did not qualify as necessity and did not fall

within the protection of Article 8 ECHR.

In Altham (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road

accident. He was charged with possession under s5(2) Misuse of Drugs Act 1971. The judge at first

instance refused to leave the defence of medical necessity to the jury so the defendant changed his plea

to guilty. The Court of Appeal held that Article 3 ECHR not to subject a person to inhuman or

degrading treatment does apply to the State. The defendant argued that using cannabis was the only

way in which his symptoms could be alleviated and that he could not do so without committing a

criminal offence. Thus, the State, by prosecuting him, subjected him to degrading treatment. The Court

said that the State, by refusing cannabis, neither did nor refrained from doing anything that would

subject the defendant to degrading treatment. The State had done nothing to change the defendant's

condition for better or worse, and there was nothing to require the Court to read the Misuse of Drugs

Act 1971 as subject to a defence of medical necessity. The Court applied Quayle where the focus was

on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose

and effect of the legislative scheme.


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In Re A (Children) (Conjoined Twins: Surgical Separation) (2000) 4 AER 961 Jodie and Mary were

ischiopagus conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it

was lawful to perform surgery to separate them, when the separation would kill Mary. If the operation

did not take place there was evidence that both would die within six months. The court proceeded on

the basis that the potential charge would be murder in that, although the girls were physically joined,

they were separate "lives in being". The court decided that the operation would be lawful. Ward LJ.

concluded that, by analogy with self -defence, it was lawful to kill Mary because she was, albeit

lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy of

"sanctity of life" because of the "quasi self -defence", but Brooke LJ, rejected self -defence because

Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of

circumstances would apply because the doctor's will was not being overwhelmed by the threat. Instead,

the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather

than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best

interests, but not in Mary's best interests, because it denied her "inherent right to life." Given the

conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there

was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the

least detrimental alternative." Jodie could benefit from the surgery to enjoy probably a near normal life;

refusal to allow separation would result in the death of both twins. So "the least detrimental alternative"

was to allow separation. Necessity would not usually be allowed as a defence to murder, but Brooke

LJ. distinguishedDudley & Stephens on the basis that the doctors were not selecting the victim unlike

the cabin boy in Dudley . The decision is restricted to cases of medical necessity and a conflict of duty

owed both by doctors to different patients and by parents to their children, but does provide an

interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as

to who should take such decisions on behalf of patients.


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REFERENCES

1. Keating, H. Clarkson, C. (2003). Criminal Law (5 th Ed.) London: Sweet & Maxwell

Limited.

2. Smith, J. & Hogan. (2002). Criminal law: Case and material (8 th Ed. p3) London:

Butterworths.

3. Cards, Cross & Jones (2006). Criminal law (17 th Ed. p34).

4. Blackstone's Criminal Practice 2011

criminal law defenses to crime

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