Defenses Class Notes

R v Palmer (1971) AC 814 Privy Council on appeal from the Court of Appeal of

Jamaica (Proportionality of Defence)

Facts : The appellant and two others were chased by three men after they stole some
ganja. The three men had sticks and stones. During the chase the appellant fired shots.
One of the men chasing them died of as a result of gun shot. The appellant's case was that
he had not fired the shot which killed the man although the trial judge directed the jury on
self-defence. The jury convicted him of murder. He appealed contending that the judge in
directing the jury on self-defence should have put an alternative verdict of manslaughter
to the jury.

Held:

Appeal dismissed. There is no option for a verdict of manslaughter where a defendant

uses excessive force in self-defence. The defence either succeeds in its entirety or it fails.
Juries may take into account the situation of the defendant in deciding if the force is
excessive and in so doing may take into account the position of dilemma facing the
defendant. 

Lord Morris:

"If there has been an attack so that defence is reasonably necessary it will be recognised
that a person defending himself cannot weigh to a nicety the exact measure of his
necessary defensive action. If a Jury thought that in a moment of unexpected anguish a
person attacked had only done what he honestly and instinctively thought was necessary
that would be most potent evidence that only reasonable defensive action had been
taken."

 B v DPP [2000] 2 AC 428 House of Lords (AGE)

A boy aged 14 was charged with an offence of inciting a child under 14 to commit an
act of gross indecency, contrary to section 1(1) of the Indecency with Children Act
1960. He had sat next to a 13 year old girl on a bus and repeatedly asked her to
perform oral sex with him. She refused. The boy believed the girl was over 14. The
question for the court was whether the offence under s.1(1) was of strict liability in
relation to the age of the victim.

Held:
 The House of Lords held that R v Prince did not lay down a rule that all offences
relating to age of the victim were outside consideration of the general presumption in
favour of mens rea. Moreover, the law had moved on since this decision favouring an
honest belief of the defendant which was not dependent upon the belief being
reasonable. Where a charge was a true crime of gravity, the stronger the presumption
of mens rea. The defendant's conviction was quashed. A presumption of mens rea will
be read into offences
The Sexual Offences Act 2003 repealed the offence in this case, replacing it with a
strict liability offence; however the presumption of a mes rea requirement still
remains good law
Lord Nicholls – the more serious an offence is, the more there is a presumption of the
defendant’s guilty mind.

R v Gladstone Williams (1984) 78 Cr. App. R. 276

(MISTAKE)

Facts: The appellant witnessed a man attack a youth. He rushed to the aid of the youth
and hit the attacker. In fact the youth had just committed a mugging and the attacker had
wrestled him to the ground to prevent him escaping. The appellant was convicted of ABH
under s.47 of the Offences Against the Person Act 1861. He appealed contending that the
trial judge gave a misdirection to the jury in requiring the mistake to be a reasonably held
mistake.

Held:

The appeal was allowed and the appellant's conviction was quashed.

Lord Lane CJ:

"The reasonableness or unreasonableness of the defendant's belief is material to the
question of whether the belief was held by the defendant at all. If the belief was in fact
held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor
there. It is irrelevant. Were it otherwise, the defendant would be convicted because he
was negligent in failing to recognise that the victim was not consenting or that a crime
was not being committed and so on. In other words the jury should be directed first of all
that the prosecution have the burden or duty of proving the unlawfulness of the
defendant's actions; secondly, if the defendant may have been labouring under a mistake
as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that
is so whether the mistake was, on an objective view, a reasonable mistake or not. 
In a case of self-defence, where self-defence or the prevention of crime is concerned, if
the jury came to the conclusion that the defendant believed, or may have believed, that he
was being attacked or that a crime was being committed, and that force was necessary to
protect himself or to prevent the crime, then the prosecution have not proved their case. If
however the defendant's alleged belief was mistaken and if the mistake was an
unreasonable one, that may be a powerful reason for coming to the conclusion that the
belief was not honestly held and should be rejected. Even if the jury come to the
conclusion that the mistake was an unreasonable one, if the defendant may genuinely
have been labouring under it, he is entitled to rely upon it.

Beckford v The Queen [1988] AC 130 Privy Council

*Proportionality and Mistake

The appellant was a police officer. He was issued with a shot-gun and ammunition and
sent with a number of other armed police officers to a house. According to the appellant a
report had been received from Heather Barnes that her brother Chester Barnes was
terrorising her mother with a gun. Heather Barnes, however, denied that she had made a
telephone call to the police or that her brother was armed. 

The appellant said that on arriving at the house, he saw a man run from the back door
with an object which appeared to be a firearm. As the police followed him, the appellant
stated that Barnes fired at the police, in response to this he fired back, shooting and
killing Barnes. In fact no gun was ever found. The trial judge directed the jury:

"A man who is attacked in circumstances where he reasonably believes his life to be in
danger or that is in danger of serious bodily injury may use such force as on reasonable
grounds he thinks necessary in order to resist the attack and if in using such force he kills
his assailant he is not guilty of any crime even if the killing is intentional."

The jury convicted him of murder (which carries the death penalty in Jamaica). He
appealed contending the judge was wrong to direct that the mistake needed to be
reasonably held.

Held:

The appeal was allowed and the conviction was quashed. The test to be applied for self-
defence is that a person may use such force as is reasonable in the circumstances as he
honestly believes them to be in the defence of himself or another.

R v Clegg [1995] 1 AC 482 House of Lords

**Defense in National Duty (Soldier)

The defendant was a soldier serving in Northern Ireland. He was manning a vehicle
check point along with four other soldiers. Other soldiers were stationed along the road
before and after the place where the defendant was stationed. A car approached the first
checkpoint and slowed down. It then accelerated at great speed with its headlights on full
beam. Another soldier ordered the car to stop to no avail. All four soldiers at the
checkpoint open fired on the car. The defendant fired three bullets as the car was
approaching and a final bullet as the car was driving away. The final shot proved to be
fatal, hitting a passenger who was in the back seat of the car. The car had been stolen and
contained young 'joy riders' not terrorists. The defendant was convicted of murder and
appealed to the Court of Appeal. His appeal was rejected on the grounds that in firing the
last shot after the danger had passed, he had used excessive force in the circumstances.
However, the Court of Appeal made the following observations:

"There is one obvious and striking difference between Private Clegg and other persons
found guilty of murder. The great majority of persons found guilty of murder, whether
they are terrorist or domestic murders, kill from an evil and wicked motive. But when
Private Clegg set out on patrol on the night of 30 September 1990 he did so to assist in
the maintenance of law and order and we have no doubt that as he commenced the patrol
he had no intention of
unlawfully killing or wounding anyone. However, he was suddenly faced with a car
driving through an army checkpoint and, being armed with a high velocity rifle to enable
him to combat the threat of terrorism, he decided to fire the fourth shot from his rifle in
circumstances which cannot be justified and the firing of his fourth shot was found to be
unlawful.

It is right that Private Clegg should be convicted in respect of the unlawful killing of
Karen Reilly and that he should receive a just punishment for committing that offence
which ended a young life and caused great sorrow to her parents and relatives and
friends. But this court considers, and we believe that many other fair-minded citizens
would share this view, that the law would be much fairer if it had been open to the trial
judge to have convicted Private Clegg of the lesser crime of manslaughter on the ground
that he did not kill Karen Reilly from an evil motive but because, his duties as a soldier
having placed him on the Glen Road armed with a high velocity rifle, he reacted wrongly
to a situation which suddenly confronted him in the course of his duties. Whilst it is right
that he should be convicted for the unlawful killing of Karen Reilly, we consider that a
law which would permit a conviction for manslaughter would reflect more clearly the
nature of the offence which he had committed."

The Court of Appeal for Northern Ireland certified the following point of law to the
House of Lords

"Where a soldier or police officer in the course of his duty kills a

person by firing a shot with the intention of killing or seriously
wounding that person and the firing is in self-defence or in defence of
another person, or in the prevention of crime, or in effecting or
assisting in the lawful arrest of offenders or suspected offenders or of
persons unlawfully at large, but constitutes force which is excessive
and unreasonable in the circumstances, is he guilty of manslaughter
and not murder?"

House of Lords held:

In dismissing the appeal the House of Lords declined the opportunity to extend the
defence available under s.3 Criminal Law Act 1967 to allow those who use excessive
force which results in death to have manslaughter convictions substituted for a murder
conviction. Whilst their Lordships were persuaded with the merits of such a change, any
change must come from Parliament.

DPP v Beard (2000)

-Intoxication

The appellant whilst intoxicated raped a 13 year old girl and put his hand over her mouth
to stop her from screaming. She died of suffocation. 

Lord Birkenhead LC:

"Under the law of England as it prevailed until early in the 19th century voluntary
drunkenness was never an excuse for criminal misconduct; and indeed the classic
authorities broadly assert that voluntary drunkenness must be considered rather an
aggravation than a defence. This view was in terms based upon the principle that a man
who by his own voluntary act debauches and destroys his will power shall be no better
situated in regard to criminal acts than a sober man.

Where a specific intent is an essential element in the offence, evidence of a state of

drunkenness rendering the accused incapable of forming such an intent should be taken
into consideration in order to determine whether he had in fact formed the intent
necessary to constitute the particular crime. If he was so drunk that he was incapable of
forming the intent required he could not be convicted of a crime which was committed
only if the intent was proved. ... In a charge of murder based upon intention to kill or to
do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his
drunken condition, incapable of forming the intent to kill or to do grievous bodily harm ...
he cannot be convicted of murder. But nevertheless unlawful homicide has been
committed by the accused, and consequently he is guilty of unlawful homicide without
malice aforethought, and that is manslaughter"

A-G for N. Ireland v. Gallagher [1963] AC 349 House of Lords

-Intoxication & Insanity

The Respondent was an aggressive psychopath and prone to violent outbursts. This was
particularly so if he had taken alcohol. He was frequently violent towards his wife. He
had spent some time in a mental hospital for which he blamed his wife. On his release he
went out and brought a bottle of whiskey and a knife. He intended to use the knife to kill
his wife and brought the whiskey as he knew that this would make him aggressive to the
extent that he would be able to kill. He drank the whiskey and killed his wife with the
knife and a hammer. He was convicted of murder and appealed to the Court of Criminal
Appeal N.I on the grounds of a mis-direction. His conviction was quashed. The Attorney
General appealed to the House of Lords on the grounds that the defence of insanity was
not open to him because before taking the drink, when there was no defect in his reason,
he had clearly evinced an intention to kill his wife and any temporary derangement of his
reason at the time of the killing was the result of his own voluntary act in taking the
drink.

Held:

Appeal allowed. The conviction restored. Where a person forms the intention to kill and
drinks in order to give themselves Dutch courage, they can not then rely on their
intoxication to demonstrate they did not have the necessary mens rea.

Lord Denning:

"My Lords, this case differs from all others in the books in that the accused man, whilst
sane and sober, before he took to the drink, had already made up 'his mind to kill his
wife. This seems to me to be far worse— and far more deserving of condemnation—than
the case of a man who. before getting drunk, has no intention to kill, but afterwards in his
cups, whilst drunk, kills another by an act which he would not dream of doing when
sober. Yet by the law of England in this latter case his drunkenness is no defence even
though it has distorted his reason and his will-power. So why should it be a defence in the
present case? And is it made any better by saying that the man is a psychopath?"
R v Kingston [1994] 3 WLR 519

Criminal law - Mens rea - Involuntary Intoxication

Facts:

Barry Kingston was involuntarily drugged by a friend. While Kingston was intoxicated,
his friend encouraged him to perform sexual acts on a 15 year old boy. The incident had
been a set up by his friend. Kingston was convicted of indecent assault. Kingston’s
defence was that if he had not been drugged, he would not have acted the way he did.

Issues:

Whether the necessary intent was present when the act was committed by Kingston, even
when the defence of involuntary intoxication is available.

Held:

The Court found that although the drugs had essentially done away with Kingston’s
inhibitions, this did not negative the necessary mental element which was found to be
present in Kingston’s conduct. Further, if an intention arose in circumstances for which
Kingston had no blame, it is still an unlawful intent that does not warrant an acquittal.
The principle in R v Majewski [1977] A.C. 443 was applied in that a crime of specific
intent requires something more than contemplation of the prohibited act and foresight of
the probably consequences. If a person becomes so intoxicated that he becomes “legless”
and commits a crime, it is a defence to a crime of specific intent but not basic intent, as
he is still somewhat aware of himself and therefore liable.  Kingston was found to be
aware that his conduct was wrong as he would not have done it if he was not intoxicated.
Involuntary intoxication in circumstances where Kingston was found to have possessed
the necessary intent needed to commit the crime, was not enough to negative the mens
rea element. The appeal was allowed and the conviction was reinstated.

R v Howe & Bannister [1987] 2 WLR 568 House of Lords

-Under Duress

Howe & Bailey both aged 19 and Bannister aged 20, were acting under orders of Murray
aged 35. The charges related to two murders and one conspiracy to murder. The first
murder related to a 17 year old male victim, Elgar. Murray had driven them all to a public
lavatory. Elgar was naked and sobbing and was subjected to torture and compelled to
undergo sexual perversions. Howe and Bannister took part in kicking and punching Elgar
and were told they would succumb to similar treatment if they did not do as Murray
ordered. Bailey strangled Elgar resulting in his death. The second killing took place the
following night at the same location on a 19 year old male Pollitt. Murray had ordered
Howe and Bannister to strangle him and they complied. The third charge related to a
similar incident, however, the intended victim managed to escape.

Held:

The defence of duress is not available for murder whether it be a principal in the first or
second degree. DPP for Northern Ireland v Lynch overruled.

Obiter dicta - The defence should not be available to one who attempts murder.

Lord Griffiths:

“We face a rising tide of violence and terrorism against which the law must stand firm
recognising that its highest duty is to protect the freedom and lives of those that live
under it. The sanctity of human life lies at the root of this ideal and I would do nothing to
undermine it, be it ever so slight. 

Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to

prove an intent to cause really serious injury. It can not be right to allow the defence to
one who may be more intent upon taking a life than the murderer.”

R v Hasan [2005] 2 AC 467; R v Z [2005] UKHL 22

Criminal law - Defence of Duress - Association with known criminal - Whether

statement was a confession

Facts:

Hasan was charged with the crime of aggravated burglary. He was associated with a gang
and relied on the defence of duress, pleading that he was blackmailed into committing the
burglary to prevent his family from being harmed.

Issues:

Whether the defence of duress was available to Hasan and whether his statement to the
police when arrested was admissible evidence under s 76 of the Police and Criminal
Evidence Act 1984 (the Act) and deemed to be a confession.

Held:
The court held that the defence of duress was unavailable for Hasan because of his
voluntary gang association and as such, he should have foreseen or ought to have
foreseen the risk of being subjected to compulsion to commit criminal offences. While he
may not have foreseen that he would be compelled to commit a burglary, his association
with the gang and other persons with a tendency to commit unlawful acts was enough to
exclude the defence. Further, the court found that his confession (argued by the defence
to be inadmissible evidence contrary to s 76 of the Act, was initially intended to be
neutral on the face of it. However, its contents became damaging at trial when it was
clear that it was inconsistent with the defence of duress Hasan was relying on. Therefore,
it was admissible evidence under s 76(1) of the Act. The appeal was allowed and the
conviction upheld.

Question 1:
Two friends, Alice and Mary, have a major falling out.
They meet at a party, by which time Alice has already had two glasses of wine.
(Intoxication) Mary approaches Alice and attempts to embrace Alice.
***Crime of specific intent
Issue 1- whether Alice’s Voluntary Intoxication is a valid defense and whether her
intoxication took her beyond the point of being able to form the Mens Rea for her
actions?
Issue 2- Whether her Mistake was sufficiently reasonable to form a Defense?
Issue 3- Whether her action of throwing the glass at Mary and causing ABH was
justifiably proportional to what she believed Mary’s actions were towards her
(hitting).

Law For Intoxication - DPP v Beard (2000), R v Kingston [1994], DPP v

Majewski [1977], R v Heard.

Application-
DPP v Majewski 
The appellant had taken a substantial quantity of drugs over a 48 hour period. He then
went to a pub and had a drink. He got into a fight with two others. The landlord went
to break up the fight and the appellant attacked him. When the police arrived, he
assaulted the arresting officer. Another officer was struck by the appellant when he
was being driven to the police station. The next morning he attacked a police
inspector in his cell. He was charged with four counts of occasioning actual bodily
harm and three counts of assaulting a police constable in the execution of his duty.
The appellant claimed he had no recollection of the events due to his intoxication. He
was found guilty on all counts and appealed contending that he could not be convicted
when he lacked the mens rea of the offences due to his intoxicated state.
Held:

Appeal dismissed. Conviction upheld. The crime was one of basic intent and therefore
his intoxication could not be relied on as a defence.
R v kingston

Facts:

Barry Kingston was involuntarily drugged by a friend. While Kingston was intoxicated,
his friend encouraged him to perform sexual acts on a 15 year old boy. The incident had
been a set up by his friend. Kingston was convicted of indecent assault. Kingston’s
defence was that if he had not been drugged, he would not have acted the way he did.

Issues:

Whether the necessary intent was present when the act was committed by Kingston, even
when the defence of involuntary intoxication is available.

Held:

The Court found that although the drugs had essentially done away with Kingston’s
inhibitions, this did not negative the necessary mental element which was found to be
present in Kingston’s conduct. Further, if an intention arose in circumstances for which
Kingston had no blame, it is still an unlawful intent that does not warrant an acquittal.
The principle in R v Majewski [1977] A.C. 443 was applied in that a crime of specific
intent requires something more than contemplation of the prohibited act and foresight of
the probably consequences. If a person becomes so intoxicated that he becomes “legless”
and commits a crime, it is a defence to a crime of specific intent but not basic intent, as
he is still somewhat aware of himself and therefore liable.  Kingston was found to be
aware that his conduct was wrong as he would not have done it if he was not intoxicated.
Involuntary intoxication in circumstances where Kingston was found to have possessed
the necessary intent needed to commit the crime, was not enough to negative the mens
rea element. The appeal was allowed and the conviction was reinstated.

DPP v Beard (2000)

-Intoxication

The appellant whilst intoxicated raped a 13 year old girl and put his hand over her mouth
to stop her from screaming. She died of suffocation. 

Lord Birkenhead LC:

"Under the law of England as it prevailed until early in the 19th century voluntary
drunkenness was never an excuse for criminal misconduct; and indeed the classic
authorities broadly assert that voluntary drunkenness must be considered rather an
aggravation than a defence. This view was in terms based upon the principle that a man
who by his own voluntary act debauches and destroys his will power shall be no better
situated in regard to criminal acts than a sober man.

Where a specific intent is an essential element in the offence, evidence of a state of

drunkenness rendering the accused incapable of forming such an intent should be taken
into consideration in order to determine whether he had in fact formed the intent
necessary to constitute the particular crime. If he was so drunk that he was incapable of
forming the intent required he could not be convicted of a crime which was committed
only if the intent was proved. ... In a charge of murder based upon intention to kill or to
do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his
drunken condition, incapable of forming the intent to kill or to do grievous bodily harm ...
he cannot be convicted of murder. But nevertheless unlawful homicide has been
committed by the accused, and consequently he is guilty of unlawful homicide without
malice aforethought, and that is manslaughter"

R v Heard [2007] 3 WLR 475 Court of Appeal

The police were called to the appellant’s house where he was heavily intoxicated and
in a depressive state and had been self harming. The police took him to hospital. He
was making a disturbance in the waiting room so the officers took him outside. The
appellant then took out his penis and started rubbing it against the officer's thigh. He
was charged with sexual assault contrary to S.3 of the Sexual Offences Act 2003.

He did not dispute that the offence occurred but claimed to have no recollection of
the events due to his intoxication. The judge ruled that the offence was one of basic
intent and such his intoxication could not be relied on in his defence. He was
convicted and appealed on the grounds that the judge was in error in ruling that sexual
assault was a crime of basic intent since it requires an intention to touch.

Held:

Appeal dismissed. The appellant's conviction was upheld. Parliament in passing the
Sexual Offences Act 2003 can not be taken to have changed the previous law which
denied a defendant from relying on voluntary intoxication as a defence. 

Conclusion –will have to decide if the action she committed was of basic or specific
intent. If it is decided it is of basic intent, she will be unable to use voluntary intoxication
as a defense. The jury will also have to decide whether her intoxication was so great as to
impair the reasonableness of her actions. If it is found that she was not intoxicated
beyond the point of being able to form the Mens Rea, the defense of intoxication will
able be available.

Thinking that Mary is about to hit her, Alice throws her empty wine glass at Mary.
(Mistake- reasonable or unreasonable??) Issue- Proportionality.
The glass shatters on Mary’s face, causing cuts and bruises. (ABH - consequence)
Alice is charged with wounding with intent to cause grievous bodily harm.
Discuss what defences, if any, might be available to Alice

Issue 2- Whether her Mistake was sufficiently reasonable to form a Defense? (Sub-issue
of Self-Defense)
Issue 3- Whether her action of throwing the glass at Mary and causing ABH was
justifiably proportional to what she believed Mary’s actions were towards her (hitting).

Law for Mistake- R v Gladstone Williams (1984), Beckford v The Queen  [1988],

Wilson v Inyang (1951), R v Tolson (1889)
Application:
 Wilson v Inyang
Medical Practitioner – Falsely pretending to be a registered person – Diploima of
drugless therapy – Honest belief in use of title “physician” – Reasonable ground for
belief – Matters for consideration by court – Medical Act, 1858 (c 90), s 40.

The respondent, an African who had lived in England for two years, published an
advertisement as follows: “Naturopath physician, ND, MRDP. Patients visited … “
and gave his address. He was not a registered medical practitioner, but he had
attended a course of instruction at a clinic of drugless therapy and had obtained a
diploma and a certificate of membership of the British Guild of Drugless
Practitioners. A charge that he wilfully and falsely used the title or description of
“physician,” contrary to s 40 of the Medical Act, 1858, was dismissed by the
magistrate on the ground that he genuinely believed that he was entitled so to describe
himself,

[1951] 2 All ER 237 at 238
although in similar circumstances no person brought up and educated in England
could reasonably have held such a belief.

Held – A person did not commit an offence under s 40 if he honestly believed that he
was within his rights in describing himself as he did; it would not be right to say that
he could not have acted honestly if he had no reasonable grounds of belief, but, in
deciding whether he had acted honestly, the court must take into consideration the
presence or absence of such grounds; in the present case the magistrate had done so;
and, therefore, his decision must stand.

 R v Tolson (1889) 23 QBD 168

The appellant married in Sept 1880. In Dec 1881 her husband went missing.
She was told that he had been on a ship that was lost at sea. Six years later,
believing her husband to be dead, she married another. 11 months later her
husband turned up. She was charged with the offence of bigamy.
Held:
She was afforded the defence of mistake as it was reasonable in the
circumstances to believe that her husband was dead.
 Beckford v The Queen [1988] AC 130 Privy Council
*Proportionality and Mistake

The appellant was a police officer. He was issued with a shot-gun and ammunition
and sent with a number of other armed police officers to a house. According to the
appellant a report had been received from Heather Barnes that her brother Chester
Barnes was terrorising her mother with a gun. Heather Barnes, however, denied
that she had made a telephone call to the police or that her brother was armed. 

The appellant said that on arriving at the house, he saw a man run from the back
door with an object which appeared to be a firearm. As the police followed him,
the appellant stated that Barnes fired at the police, in response to this he fired back,
shooting and killing Barnes. In fact no gun was ever found. The trial judge
directed the jury:

"A man who is attacked in circumstances where he reasonably believes his life to be
in danger or that is in danger of serious bodily injury may use such force as on
reasonable grounds he thinks necessary in order to resist the attack and if in using
such force he kills his assailant he is not guilty of any crime even if the killing is
intentional."

The jury convicted him of murder (which carries the death penalty in Jamaica). He
appealed contending the judge was wrong to direct that the mistake needed to be
reasonably held.

Held:

The appeal was allowed and the conviction was quashed. The test to be applied for
self-defence is that a person may use such force as is reasonable in the circumstances
as he honestly believes them to be in the defence of himself or another.

 R v Gladstone Williams (1984) 78 Cr. App. R. 276

(MISTAKE)

Facts: The appellant witnessed a man attack a youth. He rushed to the aid of the
youth and hit the attacker. In fact the youth had just committed a mugging and the
attacker had wrestled him to the ground to prevent him escaping. The appellant
was convicted of ABH under s.47 of the Offences Against the Person Act 1861.
He appealed contending that the trial judge gave a misdirection to the jury in
requiring the mistake to be a reasonably held mistake.

Held:
 The appeal was allowed and the appellant's conviction was quashed.

Lord Lane CJ:

 "The rq!easonableness or unreasonableness of the defendant's belief is material to
the question of whether the belief was held by the defendant at all. If the belief
was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is
neither here nor there. It is irrelevant. Were it otherwise, the defendant would be
convicted because he was negligent in failing to recognise that the victim was not
consenting or that a crime was not being committed and so on. In other words the
jury should be directed first of all that the prosecution have the burden or duty of
proving the unlawfulness of the defendant's actions; secondly, if the defendant
may have been labouring under a mistake as to the facts, he must be judged
according to his mistaken view of the facts; thirdly, that is so whether the mistake
was, on an objective view, a reasonable mistake or not. 
In a case of self-defence, where self-defence or the prevention of crime is
concerned, if the jury came to the conclusion that the defendant believed, or may
have believed, that he was being attacked or that a crime was being committed,
and that force was necessary to protect himself or to prevent the crime, then the
prosecution have not proved their case. If however the defendant's alleged belief
was mistaken and if the mistake was an unreasonable one, that may be a powerful
reason for coming to the conclusion that the belief was not honestly held and
should be rejected. Even if the jury come to the conclusion that the mistake was an
unreasonable one, if the defendant may genuinely have been labouring under it, he
is entitled to rely upon it.

**Law for proportionality- R v Palmer, Anthony Williams v R (1974)

Application- **Read Norman Shaw.

Anthony Williams v R
COURT OF APPEAL OF TRINIDAD AND TOBAGO

 Criminal law – Homicide – Charge of murder – Self-defence – Use of excessive

force for that purpose – Proper direction to jury – Whether effect is to reduce offence
from murder to manslaughter – Whether jury should be so directed by trial judge.

The appellant was convicted of murder at the Criminal Assizes at San Fernando. The
evidence disclosed that following an altercation between the deceased and himself, the
appellant chopped the deceased with a cutlass on the left side of his neck, thus severing
the spinal cord. By way of defence at the trial the appellant alleged in a statement from
the dock that he had chopped the deceased because the latter had advanced towards him
with a lighted 'flambeau' and attempted to burn his face with it. On appeal, the only
substantial complaint made against the learned judge's summing up was that the judge
erred in failing to direct the jury that, on the assumption that they found that the accused
was acting in self-defence when he chopped the deceased but that he used more force
than was necessary, it would be their duty to find the accused guilty of manslaughter.

Held – Where a person charged with murder is found to have intended to act in self
defence, but to have used more force than was necessary for that purpose, no question of
manslaughter arises apart from the issue of provocation.

 R v Palmer (1971) AC 814 Privy Council on appeal from the Court of Appeal

of Jamaica (Proportionality of Defence)

Facts : The appellant and two others were chased by three men after they stole
some ganja. The three men had sticks and stones. During the chase the appellant
fired shots. One of the men chasing them died of as a result of gun shot. The
appellant's case was that he had not fired the shot which killed the man although
the trial judge directed the jury on self-defence. The jury convicted him of murder.
He appealed contending that the judge in directing the jury on self-defence should
have put an alternative verdict of manslaughter to the jury.

Held:

Appeal dismissed. There is no option for a verdict of manslaughter where a

defendant uses excessive force in self-defence. The defence either succeeds in its
entirety or it fails. Juries may take into account the situation of the defendant in
deciding if the force is excessive and in so doing may take into account the
position of dilemma facing the defendant. 

Lord Morris:

"If there has been an attack so that defence is reasonably necessary it will be recognised
that a person defending himself cannot weigh to a nicety the exact measure of his
necessary defensive action. If a Jury thought that in a moment of unexpected anguish a
person attacked had only done what he honestly and instinctively thought was necessary
that would be most potent evidence that only reasonable defensive action had been
taken."
Conclusion: It is to be decided whether Alice reasonably had belief that Mary was about
to attack her (honest mistake) and instinctively thought it would be necessary (with
evidence) that a defensive action should be taken. Where a defendant uses excessive
force in self-defence, the defence either succeeds in its entirety or it fails. Juries should
take into account the situation of Alice in deciding if the force is excessive and in so
doing may take into account the position of dilemma facing the defendant. 
 In a case of self-defence, where self-defence or the prevention of crime is
concerned, if the jury came to the conclusion that the defendant believed, or may
have believed, that he was being attacked or that a crime was being committed,
and that force was necessary to protect himself or to prevent the crime, then the
prosecution have not proved their case. If however the defendant's alleged belief
was mistaken and if the mistake was an unreasonable one, that may be a powerful
reason for coming to the conclusion that the belief was not honestly held and
should be rejected. Even if the jury come to the conclusion that the mistake was an
unreasonable one, if the defendant may genuinely have been labouring under it, he
is entitled to rely upon it.
(Williams)

Question 2:
Edgar joined a criminal gang that specialized in theft from museums and art
galleries. He knew that Fred, the gang’s leader, has a reputation for violence. Fred
told Edgar that the next ‘job’ might involve causing injury to a security guard.
Edgar told Fred that he wanted nothing to do with violence, but Fred said that
unless Edgar assisted, his children ‘might not arrive home from school’. As a
consequence of this threat, Edgar reluctantly agreed to participate. Later that week,
Edgar drove Fred and other gang members to a museum where they stole various
paintings. During this enterprise, Fred shot and killed the security guard. Edgar
had, meanwhile, waited outside in the getaway car (Principal of the second degree-
person who assists another in the commission of a crime and is present when the
crime is being committed but does not actually participate in the crime).
Discuss Edgar’s criminal responsibility in light of any defence available to him.

Issue- Whether the defense of duress is applicable to Edgar’s situation given the
fact that he was willingly involved in a criminal gang and violent circumstances
such as murder is forseeable?

Law for Duress- R v Howe & Bannister [1987], R v Hasan [2005], R V

Shepherd [1988], DPP for Northern Ireland v Lynch [1975]

Application:

Where duress is raised, the test as to whether it is made out is an objective one: R v
Graham [1982] 1 All ER 801, approved in Howe and Bannister. Two questions
must be put to the jury:

• Was D, or may he have been, impelled to act as he did because, as a result of

what he reasonably believed had been said or done, he had good cause to fear that
if he did not so act he would be killed or caused serious physical injury? and

• If so, would a sober person of reasonable firmness, sharing his characteristics,

have responded to what he reasonably believed had been said or done by giving
way to the threats as D has done?

Answers for Edgar- Yes.

HOWEVER, There are LIMITATIONS to this test.

Where a person voluntarily places himself under the domination of another,

whether by joining a gang or otherwise, it is not open to him to use subsequent
threats made against him to excuse acts committed while maintaining such an
association.

Defense Unsuccessful:

R v Howe & Bannister [1987] 2 WLR 568 House of Lords

-Under Duress
Howe & Bailey both aged 19 and Bannister aged 20, were acting under orders of Murray
aged 35. The charges related to two murders and one conspiracy to murder. The first
murder related to a 17 year old male victim, Elgar. Murray had driven them all to a public
lavatory. Elgar was naked and sobbing and was subjected to torture and compelled to
undergo sexual perversions. Howe and Bannister took part in kicking and punching Elgar
and were told they would succumb to similar treatment if they did not do as Murray
ordered. Bailey strangled Elgar resulting in his death. The second killing took place the
following night at the same location on a 19 year old male Pollitt. Murray had ordered
Howe and Bannister to strangle him and they complied. The third charge related to a
similar incident, however, the intended victim managed to escape.

Held:

The defence of duress is not available for murder whether it be a principal in the first or
second degree. DPP for Northern Ireland v Lynch overruled.

Obiter dicta - The defence should not be available to one who attempts murder.

Lord Griffiths:

“We face a rising tide of violence and terrorism against which the law must stand firm
recognising that its highest duty is to protect the freedom and lives of those that live
under it. The sanctity of human life lies at the root of this ideal and I would do nothing to
undermine it, be it ever so slight. 

Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to

prove an intent to cause really serious injury. It can not be right to allow the defence to
one who may be more intent upon taking a life than the murderer.”

R v Hasan [2005] 2 AC 467; R v Z [2005] UKHL 22

Criminal law - Defence of Duress - Association with known criminal - Whether

statement was a confession

Facts:

Hasan was charged with the crime of aggravated burglary. He was associated with a gang
and relied on the defence of duress, pleading that he was blackmailed into committing the
burglary to prevent his family from being harmed.
Issues:

Whether the defence of duress was available to Hasan and whether his statement to the
police when arrested was admissible evidence under s 76 of the Police and Criminal
Evidence Act 1984 (the Act) and deemed to be a confession.

Held:

The court held that the defence of duress was unavailable for Hasan because of his
voluntary gang association and as such, he should have foreseen or ought to have
foreseen the risk of being subjected to compulsion to commit criminal offences. While he
may not have foreseen that he would be compelled to commit a burglary, his association
with the gang and other persons with a tendency to commit unlawful acts was enough to
exclude the defence. Further, the court found that his confession (argued by the defence
to be inadmissible evidence contrary to s 76 of the Act, was initially intended to be
neutral on the face of it. However, its contents became damaging at trial when it was
clear that it was inconsistent with the defence of duress Hasan was relying on. Therefore,
it was admissible evidence under s 76(1) of the Act. The appeal was allowed and the
conviction upheld.

However, in some cases, the defense in such scenarios prevailed on the view that
violence was not contemplated at the time/moment of the crime.

R v Sharp 85 Cr App R 212

The appellant joined a gang who carried out armed robberies. He then wished to
leave but was threatened with serious violence if he did so. He took part in a
robbery on a post office in which the post master was killed. He was convicted of
murder and his appeal was dismissed.

Lord Lane CJ:

"Where a person voluntarily and with knowledge of its nature joined a criminal
organisation which he knew might bring pressure on him to commit an offence,
and was an active member when he was put under such pressure, he cannot avail
himself of the defence of duress." 

Defense Successful:

 R v Shepherd [1988]
The availability of the defence of duress where the defendant initially voluntarily
engages in the relevant criminal activity.

Facts

The defendant entered a shop with a view to stealing boxes of goods from it. When
charged with burglary, the defendant raised the defence of duress on the basis that
whilst he had willingly participated in the crime initially, he subsequently lost his
nerve. However, the defendant stated that he felt compelled to continue to
contribute to the burglary because he and his family had been threatened by
violence by one of the other participating parties.

Issue

At first instance, it was held that the defence of duress was not available on these
facts because the defendant had voluntarily participated in the criminal act. The
issue for the Court of Appeal was whether the subsequent change of mind was
sufficient to allow the defence to be raised at that stage.

Held

The defence of duress is available where threats of violence to the defendant or

those close to the defendant exist to such an extent that the defendant feels
compelled to contribute to the crime and it would therefore, be unjust to find them
criminally liable for their actions (DPP for Northern Ireland v Lynch [1975] AC
653). It was held here, that the defence would be available following voluntary
involvement in criminal activity if, at the time of the voluntary involvement,
violence was not contemplated. Once the defendant changes their mind and wishes
to cease involvement, the defence will be available if, at that stage, they are aware
of the threat of violence. In other words, the defence will not apply where there is a
threat of violence initially, but at this stage the defendant voluntarily contributes
and later changes their mind.

 DPP for Northern Ireland v Lynch [1975] AC 653

**(Overruled in R v Howe & Bannister)

Duress as a defence to a charge of aiding and abetting murder

Facts
On the 29th January 1972, the appellant was instructed by members of the
IRA to drive them to a specific location in Belfast. One of the men in the car,
who went by the name Meehan, was known to the appellant by reputation,
which lead the appellant to believe that failure to comply would result in his
murder. The care he drove included three armed and masked men.
Eventually, the IRA members killed a police constable by the name of
Raymond Norman Carrol. The appellant was charged with aiding and
abetting the killing of Mr Carrol (as a principal of the second degree) and
was, at trial, sentenced to life imprisonment. Both at trial and on appeal to
the court of appeal, the appellant argued duress, as evidence was
presented that he was not an IRA member and he feared for his life if he
did not comply. This was, however, rejected both at trial and by the Court
of Criminal Appeal of Northern Ireland.

Issue

The issue in this case was whether the defence of duress was available in
the case of a charge of aiding and abetting murder, contrary to the opinion
of the trial judge and the Court of Criminal Appeal of Northern Ireland.

Held

The House of Lords allowed the appeal. The court’s decision was
underpinned by the need for the law to maintain its link to common sense
to remain humane. The majority was mindful of the fact that some
allowance must be made for the instinct of self – preservation and likened
applying duress in such a case as to a case of self-defence. The court was
also mindful of the fact that, at least in the present case, at the time when
the appellant decided to acquiesce to drive the IRA members, he was acting
to save his life without being certain that this would lead to the death of
another. It was noted however that the graver the crime for which the
defence of duress is sought, the more serious and the irresistible the threat
must be for the defence to have effect.