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week 8
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Lecture notes of 5 pages for the course Criminal Law at UoW (general offences)
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General DefencesDefences;
- Jurisdiction
- Excusal
- Mental Condition - Related
- Necessity
- Self - Defence
- Duress
- Mistake
Necessity ;
Necessity has been interpreted in several different ways in relation to its use as a defence in criminal law
Academic materials have defined necessity as the lesser of two evils. In a situation where a defendant would
result in causing harm regardless, they choose the lesser harm.
The Court of Appeal discussed necessity as “necessity of circumstances” – Quayle [2005]
Necessity has also been used as an umbrella term to include: self defence, duress and “lesser of two evils” –
Re A (Children)(Conjoined Twins: Surgical Separation) [2001]
Does a Specific Defence of Necessity exist?
Southwark LBC v Williams [1971] – Court of Appeal denied a general defence of necessity.
“Necessity would open a door which no man could shut”
Also denied in Kitson (1955)
Specifically, necessity has been rejected as a defence to murder – Dudley and Stephens (1884)
Necessity: A Limited Defence at Common Law?
Despite conflicting precedent, some courts have accepted a defence of necessity (complete defence) under
narrow specified circumstances
Where the defendant damages/steals another’s property in the public interest
Where the defendant damages their property or interferes with another’s property to save their own person or
property
Where actions are taken to benefit another where that person is unable to consent
Where the police direct people to break traffic regulations if it is necessary and reasonable to protect life or
property
A situation arising as discussed by the House of Lords in Re A
Re A (Children)(Conjoined Twins: Surgical Separation) [2001]
Conjoined twins – joined at the lower abdomen
Twin 1: Jodie
Bright and alert
Capable of living independently
Twin 2: Mary
No effective heart or lung function
Incapable of living independently
Doctors wished to separate them to save Jodie’s life (which would end Mary’s life)
Parents refused to consent to the operation
Hospital applied to the court for a declaration that an operation would be lawful
Long decision given by the court – discussed many elements of the law:
To whom do the doctors owe a duty? If they don’t operate, both will (probably) die, if they do, Mary will die
Are doctors allowed to value one life above another? Equality should prevail
Effect of the conflicting duty – Ward LJ said that the doctors still owed a duty to Mary, and ensure that “she
suffers the least pain… and retains the greatest dignity until her life comes to an end”
Offending the sanctity of life – Ward LJ discussed that as Jodie was being harmed by Mary, the doctors
weren’t offending this principle
Concluded that the operation would be carried out lawfully
, Primarily need to save life of Jodie!
Brooke LJ quoted three requirements for the defence of necessity
The act needs to avoid an inevitable and irreparable evil
No more should be done than is reasonably necessary to achieve the purpose
The evil inflicted must not be disproportionate to the evil avoided
Implied Recognition of Necessity
Not openly recognised as a defence, but Glazebrook has suggested that there is a concealed defence of
necessity.
Argued that somebody should not be guilty of doing the lesser of two evils – at least influences the court’s
reasoning
Application of the Mischief Rule of statutory interpretation?
Duress
Excusal defence – the defendant’s behaviour is still reprehensible, but the circumstances reduces the
defendant’s culpability
Duress is a complete defence
Duress itself can be split into two:
Duress of Circumstances (Could this also be interpreted to mean necessity by circumstances)
Duress by Threat
Duress of Circumstances - Necessity?
Defendant needs to reasonably believe that they acted reasonably in the circumstances
Believed that unless they commit a crime, they or another would suffer death or serious injury
A reasonable person also needs to be able to act in the same/similar way in the same situation
Only available for a threat of death or serious harm (GBH)
May not be able to rely on this defence if it is disproportionate (e.g. if they have to kill or cause GBH)
Duress; Threats?
Defence available to all crimes except murder, attempted murder and certain forms of treason
R v Howe [1987] – Duress is not a defence to murder
Defendant must show:
They committed a crime because of threats of death or grievous bodily harm (against the defendant or
another)
A reasonable person would have acted as the defendant did.
Elements of Defence
Test set out in Graham
Approved in Howe
“Was D… impelled to act as he did because, as a result of what he reasonably believed (E) had said or done,
he had good cause to fear that if he did not so act (E) would kill him or… cause him serious physical injury?
If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the
characteristics of D, would not have responded to whatever he reasonably believed (E) said or did by
committing the crime”
The Defendant Must Act Because of a Threat of Death or Serious Injury
The defendant must act because of the threats (or circumstances) – Valderrama-Vega [1985]; DPP v Bell
[1992]
The threat must be of death or grievous bodily harm – Graham [1985]
The threat of death or serious bodily harm can be against the defendant or somebody else – Abdul-Hussain
[1999]
The threat cannot come from the defendant – Rodger and Rose [1998]
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