Criminal Law: Self-Defense and Duress

• The provided text discusses the defenses of self-defense and duress by threats in criminal law, both of which, if successful, lead to a not guilty verdict for the defendant.

Self-Defence

• It covers actions taken to defend oneself, another person, or one’s property.
• The defense is based on common law and statute, particularly amended by the Criminal Justice and Immigration Act 2008.
• Section 3(1) of the Criminal Law Act 1967 provides statutory defense for preventing crime or assisting in lawful arrest.
• Section 76 of the Criminal Justice and Immigration Act 2008 outlines rules for determining the reasonableness of force used.
• It applies to all offenses.
• The requirements include:
  • Necessity of using force.
  • Reasonableness of the force used.

Necessity of Force

• The defendant is judged based on their genuine belief of the facts (subjective test).
• R v Williams (Gladstone) (1983): The defendant's genuine, mistaken view of facts should be considered, regardless of its reasonableness.
• Section 76(3) of the Criminal Justice and Immigration Act 2008 statutorily supports the principle in R v Williams (Gladstone).
• Reasonableness of a belief is relevant to whether the defendant genuinely held it.
• A mistake made due to voluntary intoxication cannot be relied upon for self-defense, according to Section 76(5).

Mental Conditions

• Delusions from psychiatric conditions or PTSD can be included in the defendant’s genuine belief.
• R v Oye (2013): Addressed delusions stemming from a psychiatric condition.
• R v Press and Thompson (2013): Applied similar principles to soldiers with PTSD, maintaining an objective standard for reasonable force.
• Parliament intended to maintain the objective criteria for reasonable force when enacting s 76 of the Criminal Justice and Immigration Act 2008.

Pre-emptive Strike

• It is permissible under certain conditions.
• R v Bird (1986): There is no duty to retreat, but willingness to retreat is a factor in assessing the use of force.
• Section 76(6A) of the Criminal Justice and Immigration Act 2008: Clarifies that there's no duty to retreat, but it's a relevant factor.

Initial Aggressor

• May use force if the victim’s response is disproportionate and seriously threatens the defendant.
• R v Rashford (2005): The defense can be successful if the victim's response is disproportionate to the defendant's initial aggression
• The defense is lost if the defendant is the aggressor throughout.
• Self-defense depends on whether the defendant feared immediate danger and used necessary violence.

Proportionate Force

• It is considered based on the defendant’s genuine beliefs.
• Section 76(6) of the Criminal Justice and Immigration Act 2008: Disproportionate force is not reasonable, except in 'householder cases'.
• The test is objective.
• Factors taken into account include:
  • Inability to perfectly measure necessary action (s 76(7)(a)).
  • Honest and instinctive actions are reasonable (s 76(7)(b)).
• There is no simple measure of equality.
• Initially proportionate force can become disproportionate.
• R v Clegg (1995): The soldier used excessive force because the danger had passed.
• R v Martin (2002): The defendant shot the burglars as they were leaving, so the defense was ineffective as the danger had passed.

Householder Cases

• Section 76(5A) of the Criminal Justice and Immigration Act 2008: Grossly disproportionate force is not considered reasonable in a dwelling.
• Conditions:
  • Force used in a building that is a dwelling.
  • The defendant is not a trespasser.
  • The defendant believed the victim was a trespasser.
• Considerations:
  • Was the force grossly disproportionate?
  • Was the force reasonable in the circumstances?
• R v Ray (2017) and R (Denby Collins) v Secretary of State for Justice (2016) are cases that confirm the interpretation of the defense in householder cases.
• The jury will consider factors such as shock, time of day, presence of others, weapons used, and the intruder's conduct.

Statutory Defence (Public Defence)

• Section 3(1) of the Criminal Law Act 1967: Permits reasonable force to prevent crime or assist in lawful arrest.
• It can be used to:
  • Defend oneself.
  • Prevent an attack on another.
  • Defend property.
• Tests are similar to private defense:
  • Subjective test: Whether the defendant believed force was necessary.
  • Objective test: Whether the force used was reasonable.
• R v Williams (2020): The defense isn't allowed to be used to recover stolen property.

Duress by Threats

• It's a common law defense where the defendant commits a crime due to threats.
• It isn't a defense for murder (R v Howe (1987)) or attempted murder (R v Gotts (1992)).

Tests for Duress

• Set out in R v Hasan (2005):
  • Threat of death or serious injury.
  • Threat directed against the defendant, their family, or someone close.
  • The defendant acted reasonably, judged objectively.
  • Threats directly relate to the crime.
  • No evasive action was possible.
  • The defendant did not voluntarily expose themselves to the threat.
• R v Hasan (2005): The defendant's duress defense was rejected because he voluntarily exposed himself to the threats.

The Threat

• Must be of death or serious injury.
• The cumulative effect of threats can be considered (R v Valderrama-Vega (1985)).
• R v Valderrama-Vega (1985): The jury can look at the cumulative effects of all threats made against him.
• R v Hammond (2013): The defense of duress was not available.
• The threat must be effective when the crime is committed, not necessarily immediately (R v Hudson and Taylor (1971)).
• R v Hudson and Taylor (1971): The threat had to neutralise the will of the defendant but does not need to be carried out immediately.

Target of Threat

• The threat must be directed against:
• The defendant.
• Their immediate family.
• Someone close to them.
• A person for whose safety the defendant would reasonably feel responsible.

Defendant Acting Reasonably

• Based on a two-stage test from R v Graham (1982):
  • Was the defendant compelled due to a reasonable belief of serious injury or death?
  • Would a sober, reasonable person with the defendant’s characteristics have responded the same way?
• R v Graham (1982): The defence of duress will not be available when a defendant’s will to resist a threat has been eroded by the voluntary consumption of drink or drugs, or both.
• R v Bowen (1996): The defendant's low IQ must go to the ability to resist pressure and threats.
• Relevant characteristics may include age, pregnancy, disability, mental illness, and possibly gender.

Threat/Offence Nexus

• Threats must be to commit a specific offense.
• R v Cole (1994): Insufficient connection between the threats and the crimes committed, so the defense was not available.

Evasive Action

• Duress is a defense only if there was no safe avenue of escape.
• R v Gill (1963): There was a possibility of a ‘safe avenue of escape’.
• Police protection being possible negates duress.

Voluntary Exposure to Threats

• The defense cannot be used if the defendant voluntarily exposed themselves to the threats.
• R v Sharp (1987): Prevented the duress defense when someone knowingly joins a criminal organization.
• R v Shepherd (1987): The defense could only be raised with respect to offenses committed after he had been threatened