Criminal Law: Defences

final year



1. Denial of an offence (didn't commit the crime/had to):

a. Automatism

b. Duress (excuse), duress of circumstance (excuse) and necessity (justification)

2. Defences (excusary offences) :

a. Insanity

b. Diminished

c. Self-defence (private/public

3. Intoxication

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The elements..

1. Denial of an offence (didn't comit the crime):

a. Automatism (acted involuntarily and not liable) - D does not complete a voluntary act & not liable. Denial of offence completely. Not really a defence in strict legal terms. D to raise evidence and prosecution have burden of proof to prove otherwise. (unconcious or forced. Most favoured.

b. Duress (excuse), duress of circumstance (excuse) and necessity (justification) (Didn't commit crime because...did have MR and AR but lacked responsibility and can be excused. Complete aquittal. Duress: threats by person will be killed/seriously hurt, DoC: similar to duress but not by a person, Necessity: forced by circumstances to commit crime i.e. choice of two evils). 

2. Defences (excusary offences) :

a. Insanity (full defence and 'not responsible' to escape liability) (pre-trial insanity/unfit to plead at time of trial or insanity as defence at trial for the time of the offence.

b. Diminished responsibility (partial defence to murder into manslaughter, works with loss of self-control. Abnormality of the mind from recognised medical condition, substantially impaired or provides an explanation for his acts or omissions.)

c. Self-defence (private/public: defence to any crime involving force to protect legit interests.

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The elements part 2

3. Intoxication: (lack of MR, involuntary or voluntary specific intent without MR offence or voluntary basic intent non dangerous offence)

Hart: 'unless a man has the capacity and fair opportunity or chance to adjust his behaviour to the law, its penalties ought not to be applied to him' (choice vs blameworthiness and blamewortiness vs protection of society - if he is unable to choose, cannot be blameworthy)

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Automatism 1

D does not complete a voluntary act, and thus D does not complete the offence (external)

Definition: Bratty v AG for NI 1963(Lord Denning HoL's): 'automatism means an act which is done by the muscles without any control by the mind such as a spasm, reflex action or convulsion, or an act done by a person who is not conscious of what he is criminal law an act is not to be regarded as an involuntary act simply because the actor does not remember it...nor simply because the doer could not control his impulse'. (now narrowed: D charged w/murder, strangled gf, claimed blackout and acting in automatic state, convicted & judge didn't allow automatism.)

Brueman Perkins: D charged w/drinking w/out care. Claimed diabetic attack & out of control (automatism). Court rejected to raise defence as D able to drive car a bit. Not automatism. 

AG Ref: D charged w/causing death by dangerous driving. Med evid. that suffering w/driving w/out awareness as no break. Short distances ok but no ability to engage with world. 1st inst: aquitted as partial awareness. CoA: D shouldnt have been allowed automatism. Need complete. 

Morrison 1996: D suffered diabetic episode & caused harm. Denied automatism defence as clear that D knew before got in car may suffer. Should have foreseen. Negligence not enough. Coley, McGhee, Harris 2013 CoA: made automatism v.strict for ALL not just driving. 'Wholly involuntary conduct' needed, not partial. 

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Automatism 2

Internal (insanity)External (automatism)

Hill v Baxter 1958 (Devlin J): 'if disease not the cause, if some temporary (external) loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and safe to let an acquitted man go entirely free. If disease is present (internal), same thing may happen again.' Automatism = complete aquittal and justification. External vs. internal. 

Sullivan 1984: D charged w/GBH. Claimed epiletic fit. Judge said case of insanity as internal. HoL's upheld as was internal (in his body). Odd to count insanity as epilepsy!!!

Burgess 1991: Asleep but hit V over head and charged w/GBH. Trial judge said internal not external and thus insanity not automatism. CoA upheld. 

R v T: ***** woman suffered PTSD & burgled/assaulted. Claimed psych-blow as V, Judge allowed automatism defence and jury found liability as no complete loss of control. Rare now.

Rabey 1977: D obsessed by V. Hit on head w/rock. Aquitted automatism. Appeal said insanity.

Thomas 2009: H strangled W of 40yrs. Didnt take meds & took viagra. Automatism, should be insanity and wrongly applied, which is often the case as internal not external! Inconsistencies!

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Automatism Overview


1. No control over actions AND

2. Not foreseen or self induced AND

3. Caused by external event

= Automatism = COMPLETE acquittal

John Child & A Reed 'Automatism is never a defence': Automatism is never a defence. When D not @ fault for lack of voluntariness, automatism merely a shorthand phrase. Automatism plays an inculpatory role within the law, but is defective: prior fault automatism lacks the equivalent blameworthiness necessary to fairly substitute for even missing basic intent offence elements. New automatism offence= recognise criminal blameworthiness of D's conduct in certain cases, but to do so in a coherent manner that appropriately criminalises and labels the defendant, then can evaluate the future role of automatism. If we do not believe that such an offence is deserving of criminalisation, then the current law must be changed to prevent prior fault automatism constructing liability under any circumstances. If we do believe that such an offence has a place within the criminal law, then the current law should be changed to reflect this more clearly, and we must focus on exactly how it should be defined. 

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Insanity: pre-trial

At time of trial, D unable (due to insanity) to stand trial. 

- Raised by defence or prosecution or judge (onus on person who raises it, defence = on balance of probability, prosecution = prove on reasonable doubt. Judge determines the issue per s.22 of Domestic Violence, Crimes & Victims Act 2004. Court needs advice of 2 med experts. 

- Criminal Procedure (Insanity) Act 1964, amended by Criminal Procedure (insanity & unfitness to plead) Act 1991. 

- Moyle 09: D paranoid delusions+unfit to plead/excuse from trial. Court= delusional not enough.

- Podola 1960: Suffered anamesia, couldnt remember what happened. Court =no. fit now!

- M 2003: D must be able to: understand charges and plea and trial, challenge jurors, instruct counsel, give evidence if chooses. 

- If unfit, D will be tried w/jury on facts (AR, not MR). No = aquitted, Yes = orders availed i.e. compulsory detention, aquittal or supervision = problematic (Antoine 2011: couldnt use diminished resp but could use others? odd? D killed boy to sacrafice to devil. Unfit to plead but wanted to raise DR, court said no, can't use DR as can't use MR. Could use mistake defence etc!

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Insanity defence (at time of offence)

D is fit to stand, but offers a defence based on insanity at the time of offence

- D may have control over body (so some voluntaryness), but D lacks responsibility for his acts due to an internal cause). Voluntary + MR = can still be claim insanity! 

- Insanity = sufficiently detached and doesn't deserve punishment. Culpability vs. protection of society = law reaches a balance as complete defence but reverses burden of proof on balance of probabilites not reasonable doubt (psych assessment req'd, but doesn't lead to toal acquittal, leads to not guilty by reason of insanity and discretion of court what to do!!! Normally leads to indefinite detainment hence why prosecution often seek as life rather than 15 yrs in prison! (fear that D will repeat so need to detain!)

- Court powers: hosptial, discharge, guardianship order, treatment/supervision. If murder = fixed sentence remains. Domestic Violence Crime & Victims Act 2004 said can only detain if for treatment so their condition must be treatable. 'personality disorder' = not treatable and cant lead to compulsory detention but fixed sentence remains if convicted of murder. 

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Insanity defence (at time of offence) 2

M'Naghten Case 1843: famous case estb. rules when insanity can be applied. D attempted to kill Home secretary. Failed but did kill his secretary. Insanity defence raised as claimed morbid delusions of conservative party. Caused huge outcry when this defence was accepted. Not at trial but debate in HoL's by law lords: "to establish a defence on the grounds of insanity, it must be clearly prove that, at the time of committing the act, the accused was labouring 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 that he did not know what he was doing was wrong."

1. Defect of reason (Clarke per J. Ackner: D charged w/theft, no int to take property, absent minded,med evid defect of mind, insanity=court said no, no lack of ability to reason just failing to use ability) AND

2. Caused by disease of mind (Sullivan: doesn't matter if brain organically wrong/deterioration/actual disease, just need functioning defect/problem. Epilepsy case, no mental influence as it is internal and doesn't matter if temp) or (Kemp 1957: Caused by something internal to D who attacked wife w/hammer, blood against brain and caused loss of conciousness. Not disease of mind. Internal curable and temp but still internal and therefore was insanity.  TO

3. Not know nature and quality of act OR

4. Not know that is wrong 

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insanity defence (at time of offence) 3

2. Caused by disease of mind 

External = hit on head, not insanity but could be automatism

Internal = epiletic fit, sleep walking and insanity

**PROBLEM: Diabetes two types - hypo (too much insulin) or hyper (needs insulin), both cases broadly the same as loss of consciousness and often results in aggresiveness BUT reason for unconsciousness are different: failure to take insulin is internal but too much is external as added to your body. Silly disctintion of internal vs. external and ability to use insanity vs. automatism. Was hoped this disctintion would be removed but was not. 

- Quick 1973: D assaulted patient as too much insulin (hypo). Court said could use automatism as external cause by putting too much insulin in body. Court distinguished hypo and hyper!!!! 

- Hennesey 1989: approved Quick. Diabetic episode, failed to take insulin, internal only and could use insanity for driving whilst disqual'd. Seems crazy to label insance for having diabetes!!! 

- Sleep walking often deemed automatism even though insanity as internal cause!! Total acquittal!

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Insanity defence (at time of offence) 4

3. Not know nature and quality of act OR

- Physical nt/moral. Unconsciousness most obvious or conscious+suffering halucinations (Stephens digest said i.e.cutting bread but cutting throat really!or Law Comm: Young child playing violent games+ kills but thinks will regenerate like in comp + not understand quality of act. 

4. Not know that is wrong (legal vs moral)

Windle 1952: D's wife = insane and spoke of commiting suicide. Obsesed of idea of his wife. One of workmates suggested give asprin and he gave her 100 and killed her. He rang police and said 'ill be hung for this', all medical evid showing defect of mind and unable to show rights and wrongs but as said 'will be hung for this' demonstrated knew legally wrong what had done. Harsh but confirmed in....

R v Dean Johnson 2007  D hearing voices, schizophrenic. Armed with knife and killed V. Stabbed and shouted. Looks like insanity, med evid diagnosed w/disease of mind and didnt understand right and wrong but in control of body. However understood what was legally wrong. 1st inst and CoA clarified as per Windle, couldn't use insanity as knew what legally wrong was. 

Ronnie Mackay: strict legal distinction of legal vs. morally wrong, in reality, court doesn't apply. 

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Insanity REFORM

HRA: R v Harrow Crown Court 2003: insanity found to be broadly compatible with HRA

*Priorities of law and medical v. diff. Law to protect society and not a totally medical vein. Insanity is almost completely detached from medical science. 

*Law Comm 2013: Insanity & Automatism: reform for this area to integrate law with medical more. 

Allen: 'to say that the law is an *** is to engage in an understatement'

*Oye 2013: should have been insanity but was mistaken-self defence. Shows inconsitencies. Medics testifying Mcnaughten rules when not there job to decide on law!! Shows the gap between medics and law. Self-defence raised alongside insanity. New? Creating new structures? B 2013: two defences weren't raised like in Oye? Confusion now? Harris 2013 judge directed wrongly as per Sullivan. Insanity seems to have got lost? 

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Diminished Responsibility

Partial defence to murder only leading to manslaughter charge

- Homicide Act 1957 s.2 (pre 2009 Act) 'such abnormality of the mind (whether from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions'. (V.criticised and applied inconsistently so now substantially reworded, vague language). 

- Byrne (old law case): D convicted of multiple murder and mutilation of corpses. DR raised, q to jury 'if look at evid there is something so defective to go beyond norm, should find abnormality'. Normal people = jury, recognise so abornal and therefore socities view not medical. New law=find same but backed w/med evidence and Q to jury would be different. Medic involvement allows the law to now keep in step with medical changes/evolution. 

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DR 2: S.2 Homicide Act 1957 amended by Coroners &

1) Abnormality of mental functioning (modernising of language and scope for psychiatric intervention),

1a) Recognised medical condition (must be legally recognised though too, i.e. anger/paedophillia med rec not legally rec, Dowds 2012: acute intoxication recog'd by medic not law though. Restricts woman from using defence when kill husband, need depression etc. NB: no mention of learning difficulties + v. criticised by HoL's + Commons + allowing a gap in the law for judges)

1b) Substantially impaired to do one or more things (R 2010: substantial to be interpreted by natural meaning i.e. more than trivial but do not need to lose control completely, Dietschman 2003: old law, D killed friend when suffering with depression after grieving for aunt, depression = recognised but voluntary intoxic cant be. HoL's clarified and said doesnt matter if med cause principal cause or not, just needs to be substantial which it was! Ahluwalia 1993: famous old case: Women wanted to use loss of self control not DR as DR says something wrong with her and loss of self control more preferred, even though leads to same result.  

1c) Provides an explanation for D's acts and omissions in doing or being party to the killing.

1A) those things are to a) understand the nature of D's conduct (similiar to insanity) b) form rational judgement (mercy killings here, plead to die so clouds judgement or c) to exercise self-control (v. wide this part and likely to be used the most). 

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Def of Duress: D commits a crime because of threats by a person that he (or someone else) will be killed/seriously hurt. (FORCED because threatened). Lack of voluntaryness per se.   

- NOT a defence to murder/secondary party/attempted: Wilson (D=13, killed V per Dads instruct. D scared+threatened badly. Court said: vulnerable but duress not a defence to murder. End of.

Lynch: duress could be defence to murder as secondary party but...Howe: overruled Lynch, duress no defence to murder or murder as secondary party as get same sentence as principal. NB: homicide report recommended duess should be defence to murder but should switch burden of proof to defence on balance of probabilities = hard to do!!!!

- Law Comm 'Criminal Report: Defences of General Application 1977: no 83: recommended defence should be available as defence to all offences inc. murder.  Affirmed recomendation in Law Comm no 304 'murder, manslaughter and infanticide) 2006 but only for murder if threat or serious life threatening harm but burden of proof to defence on balance of prob. 

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Law Comm Duress Recommendations

- Law Comm 'Criminal Report: Defences of General Application 1977: (no 83): recommended defence should be available as defence to all offences inc. murder, Lord Bingham in Hasan commented the logic of this argument is irresistble. But not adopted and because in the case of gravest crimes no threat to the D should excuse commission of the crime. Many other jurisdictions limit duress to narrower offences more than English law i.e. Aus & New Zealand.

- Affirmed recomendation in Law Comm 2006 (no 304) 'Murder, Manslaughter and Infanticide) but only for murder if threat or serious life threatening harm but burden of proof to defence on balance of prob + persuaded by minority for full not partial on moral basis to not stigmatise person who reasonable and genuinely believed if reasonable person do same thing. Changed from CP partial ideas, need coherent structure for 1st degree + attempted murder and full for all Also pointed out Mr Justice Elias: witholding duress as complete defence implies criminal law supports view that people ought to act exceptionally moral and courageous and being punished for giving way to enormous fear and wholly understandable human frailty.

- But as Proff Sir John Smith QC commented on Cole w/ref to the above law comm proposal: 'duress is a unique defence in that it so much more likely than other to depend on assertions which are perculilarly diff for the prosecution to investigate or disprove'.

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Justification or Excuse?

- JUSTIFICATION: attacked + protecting position + right thing to do + would do it again (these need to be communicated to the public and are very imp for codification and explanation. D should be acquitted because he did the right thing!!!!! Not in legal rules!

EXCUSES: not the right thing to do + forced to do even though wrong. (Unfair to punish these people. These do not need to be communicated so as to not encourage the public to utilise these. D did the wrong thing but it would be unfair to punish him!!!! Not in legal rules!

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Duress: key questions to ask...

1. What must be threatened? (how serious?) must be death or serious harm/maybe psychological injury! Must be external threat.

2. Do we allowed the defence if D was mistaken about the threat? ('I'll get you'=ok?) yes but mistake must be reasonable. 

3. Must the threat have caused the offence? Other factors? (Causal link?) Must have caused D's will to be overborne and be linked to exact crime committed. 

4. Who must be threatened? (stranger?proximity?) Usually D, however can extend to member of immediate family or person for whose safety D would reasonably regard himself as responsible. 

5. Must the threat be imminent? (Call police?Kill in 1 months time?) Threat must be operative. Stops after threat is avoided and only begins when threat is active. 

6. What is we think D should have been able to withstand the threat? (threatened by 7 year old?) Threat must have have overborne the will of a person of reasonable firmness sharing the characteristics of D. Cannot use if D voluntary exposed himself to the threats. 

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1st: what must be threatened?

1. What must be threatened? (how serious?) must be death or serious harm/maybe psychological injury! 

- Baker & Wilkins: custody dispute between mum & dad, child on access visit, dad+new wife kept child and made allegations of child abuse. Mum attempted to get kid back+went to house and broke in. Claimed lawful excuse: threats to emotional harm in taking child was sufficient. Argued duress shouldn't be limited to death. Should allow psychological. CoA rejected but did openly call for codification of the law in this area, showing not comfy with the decision they were making. This may be allowed in the future and Smith & Hogan argue it should be! 

- Roger & Rose: escaped from prison after tarifs for murder raised by Home Sec. Arrested. Claimed duress for staying in prison. Forced to stay, would have committed suicide. CoA said NO. Suicide=internal threat to life and self-induced. Must be external threat. Concession to human vulnerability not individual vulnerability. 

- Law Comm recommended: narrow even further to just life threat harms!!!

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2nd: do we allow if D was mistaken about the threa

2. Do we allowed the defence if D was mistaken about the threat? ('I'll get you'=ok?) yes but mistake must be reasonable. 

- It's about what D believed. But this has been qualified by 'reasonability' (NB: inconsistent): 

A) Graham: D lived in relationship w/wife and gay lover. Lover violent to D +  his wife. D unstable mentally + drinking lots. Gay lover said to D should kill wife. Put rope round wife + told D to pull. Duress? Q raised whether could use defence. Court said could only use defence if reasonable. Voluntary intoxic couldnt be taken into a/c for reasonable mistake!! Confirmed in Howe (HoL's). 

B) Cf Martin: (Mantell LJ) CoA: not lasted long. Said could rely on mistake following self-def law i.e. can be unreasonable but must be honestly believe mistake to use SD and duress in line. Reasonable vs. honest. More consistent but overruled in Hasan. Stated subjective test in error.

C) Safi & Others: CoA: Afghan highjackers landed plane Stansted,claimed duress as fear persecution from Taliban, not direct but duress by circums.1st inst: failed,threat not communicated.CoA: successful+aquitted, do not need explicit threat, but reasonable+operative.

D) Hasan: (Bingham & Steyn) HoL's: narrowing of duress, affirmed Graham (reasonableness), Martin doubted, mistaken belief must be reasonable not honest. Overruled earlier CoA decision. Objective test preffered and wedge between duress and SD reinstated.

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3rd: Must the threat have caused the offence?

3. Must the threat have caused the offence? Other factors? (Causal link?) Must have caused D's will to be overborne and be linked to exact crime committed. 

-Causal: Valderrama-Vega: in line w/general principles. Can have multiple, just need causal. D charged w/import of drugs. D used defence of duress and forced as involved wi/threat of death to him and fam. Motivated to earn £ though + reveal sexual orientation. Multiple threats. Sexuality+£ not duress but death threat accumalitive but for cause and could use duress. If no threat of death, only £+sexual would he still have commited. Court found yes and he could use duress. 

- Exact crime: Cole: D tried to use duress of circum for robbery charge. D borred £ from sharks, unable to repay, treats to him+gf, hit him and getting worse. Robbed 2 banks, lenders never said 'rob bank'. Threat was to return £. Threat but no causal link with specific crime. CoA agreed. Harsh. Policy decision? Any ambiguity in causal link may throw out defence. Inconsistent w/duress of circm as tidal wave doesnt tell you to break in car but you do + allowed?

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4th: Who must be threatened?

4. Who must be threatened? (stranger?proximity?) Usually D, however can extend to member of immediate family or person for whose safety D would reasonably regard himself as responsible. 

- Hurley & Murray: assumption was D or immed fam. Co-hab partner and court said fine!

- Hasan: HoL's: (Bingham & Steyn): more generous = reasonably regard as responsible for, not live issue but generally accepted as logical, stranger could be included here too!! 

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5th: Must the threat be imminent?

5. Must the threat be imminent? (Call police?Kill in 1 months time?) Threat must be operative. Stops after threat is avoided and only begins when threat is active. 

A) Stops after threat: can't drink drive or be killed and continue drink driving home as convenient. 

B) Threat must be active: 

- Hudson & Taylor: d1+d2 lied in court, purgery, tried to use duress, threatened by gang, serious injury if told truth, member of gang in public gallery so constant operative threat, argument not operative as in court+protected. Court held operative threat and could use duress as present threat and unable to seek help. Recognises police cant provide perfect protection!

- Abdul-Hussain & Others: plane highjacking, iraq citizens, living in Sudan and feared expulsion back to Iraq+had reasonable belief would suffer serious threat if deported by Sadam Hussein, landed in London Stansted and claimed assylum and duress. Described as necessity but was duress. 1st inst: not imminent, non specific, ever lasting. CoA overuled, duress for jury to decide!

- Hasan: HoL's: 'did D reasonably believe they were under operative threat from start to finish with no opportunity to avoid the threat?

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6th..Should D have withstood the threat?

6. What is we think D should have been able to withstand the threat? (threatened by 7 year old?) Threat must have have overborne the will of a person of reasonable firmness sharing the characteristics of D. Cannot use if D voluntary exposed himself to the threats. 

- Mental problems? generally unsuccessful, emphasis on objectivity +human not individual vulnerability, but some evidence of characterstics being accepted, i.e. physique, age, gender.

- Graham: Gay lover case. Various reasons why D vulnerable. BUT reasonable person cannot be correlated with someone on drink and vallium. Test is reasonable sober, not drunk person! 

- Bowen: Obiter. D charged w/obtaining services by deception, claimed acting under duress, threatened to petrol bomb house, didnt go to police, pressured+operative threat. CoA decided whether reasonable person could overbourne threats. Could his v. low IQ be taken into a/c? Court said no. IQ doesn't impact on ability to withstand. Generous interp on how works: timid=irrelev, but age, gener, preganacy, disabilty, physical, recog'd med cond, not voluntary intoxication etc. 

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6th..Should D have withstood the threat? 2

6th cont'd: D can not use the defence if he voluntarily exposed himself to threats...

- Developed over time, defence narrowed. Debates around if join and want to get out of gang or child born into IRA fam, not really volunatary, how can they use duress? Prior fault=enough to construct liability. All about whether D comes with clean hands!!!

- Sharp: D armed robbery,joined gang of robbers but didnt know full extent, tried to get out, threatened to go along or cause serious harm. Court rejected. Should have known full extent. 

- Shepherd: D joined group of shoplifters, gang wanted burglary. Threatened w/life, 1st inst: not allowed, CoA: allowed,not voluntary assoc, large gap in crime, not reasonable forseeability.

- Heath: narrower. D heroin addict, debt to supplier who threatened w/serious harm, to reduce debt drive lorry of shampoo actually cannabis, claimed duress. CoA upheld despite reasonable foreseeability of not being canabis, voluntary association and opened himself to threats! NO!

- Hasan: Hasan=minder of prostitute. Bf threatened Hasan burglary or would harm. Claimed duress, HoL's asserted Heath. No volunt assoc but general assoc enough to undermine duress. Lord Bingham: 'any compulsion at all, some risk of threat and violence will rid defence of duress'. 

- Ali: CoA: D assoc w/knife carrier, enough to be refused duress as foresee threat! 

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Duress reform...academic commentary

- Perka v The Queen [1984] Dickson J held that "If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale."

 - David Ibbetson CLJ 05: ‘Duress revisited’ It may perhaps be, therefore, that duress is distinct from the other defences and its greater degree of objectivism acceptable on pragmatic grounds. Perhaps. But we need to remember that at this point we are concerned with the defendant's perceptions rather than his or her power to hold firm in the face of threats, risk or provocation. Convicting the weak-minded who can persuade the jury that they honestly believed they would be kidnapped by aliens if they did not commit some offence will not help catch the weak-willed, nor will it discourage the out-and-out liar who weaves a wholly believable story that he was being threatened with death or serious injury

- Janet Loveless 'Domestic violence, coercion & duress' 2010: not every woman will have grounds for pleading duress or deserve aquittal. Coercion to perform domestic chores is different from coercion to commit crime. Test for duress pose extra difficulties for women seeking to rely on coercive domestic violence than other D's. Practical effect been limited and unhelpful to women. Women are no more likely than men to be angels, but neither are they demons. Not always an explicit threat so many fall short. Fortitude: abuse over time may mean D cannot withstand. Reasonableness not honest so women restricted. 

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Duress of Circumstance...

- Duress of circumrance is more rooted and well-standing with precision unlike duress by threat! A new defence that 'grew overnight like a mushroom' in 80's. Apply 6 rules from duress by threat i.e. voluntary involvement would mitigate the defence

Two part test: (same as duress by threat but emphasis on situation)

1) Was D impelled to act because as a result of what he reasonably believed to be the situtation, he had good cause to fear death or serious physical injury?

2) If so, might a sober person of reasonable firmness, sharing the characteristics of D, have responded to that situ by acting as he acted?

- Willer: D charged w/reckless driving on pavement of shopping mall to avoid gang of youths. Couldn't use duress by threat defence as youth's weren't shouting 'drive on payment'& no cause! Could use duress by circumstance as pavement=only route of escape and court said yes!

- Conway: Car chase. Passenger of D chased and trying to be kiled. Driving crazy to get away. Duress by circumstance allowed. No causal link for duress by threat so DbC could apply!

- Martin (Colin): D charged w/driving whilst disquald. Son late4work. D's suicidal wife said unless drove son would kill herself. DbT really but court accept DbC. Balancing. Suicide=not crime!

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Duress of circumstance 2

- Jones (HoL's) Lord Bingham and Lord Hoffman : D charged w/crim damage of air force base. Claimed DoC because Brit Army killing people in Iraq so felt responsible to save lives. Problematic. DoC can only apply if crime of nat law and therefore couldnt use this defence. CLUMSY reasoning. Tried to affirm it was for Parliament not the executive or judiciary to create new criminal offences. Contrary to Martin (Colin) as suicide not crime!!! HoL's and still not correct. Unlikely to be followed as uncertain. Rabinder Singh QC for co-def's. 

Clive Walker 2007: 'Defence: appellants protesting against war in Iraq': Whether: (1) defendants charged with various offences arising out of a protest against the war in Iraq were entitled to claim they were using reasonable force to prevent a crime, relying on the Criminal Law Act 1967 s.3; (2) the defendants could argue that the war in Iraq was a crime of aggression which was a "crime" for the purposes of s.3; and (3) a crime of aggression under customary international law was a crime under domestic law. Both a “crime” in s.3 of the 1967 Act and an “offence” under s.68(2) of the 1994 Act meant a crime or offence in domestic law. The English courts were never so dogmatically opposed to peeking over the jurisdictional fence and using the Convention as an aid to interpretation where a statute was unclear. Refusal to recognise crime of agression as domestic. 

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Duress and Murder 1

- English law holds accomplices as principals but there were conflicting cases in the 70's:

- Lynch v DPP HoL's: duress for complicity murder, D forced to getaway driver for men who killed V, had knowledge+accomplice+treated as P, defence of duress for accesory allowed 3-2). 

- Abbot: murder as principal offender, 3-2 split, murder cannot use duress offence!! 

Kenneth J. Arenson 2014 'The paradox of disallowing duress as a defence to murder': Argues for duress for murder in Aus (except Victoria) and UK. Lord Hailsham's reasoning in Howe cannot withstand careful analysis. Long festered as an anomaly in the law that will inevitably lead to unfair results.This makes eminently good sense if one accepts that a person who kills under duress should not be treated the same, much less worse, than a person who kills without lawful excuse and for no other reason than the anger that he or she feels as a consequence of provocative words, actions, or both on the part of the deceased. For centuries the law has not only declined to treat the two with parity, but has inexplicably opted to treat the more blameworthy person with more compassion than the one who is arguably devoid of any fault whatsoever. One possible solution is to enact legislation that codifies the common law version of the defence or some variation of it like Victoria & Tasmania. One solution would be simply to abolish the defence of provocation as is becoming increasingly common. 

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Duress & Murder 2

- Howe: HoL's (Lord Hailsham leading majority, Lord Griffiths too) -overruled Lynch, excl. defence of duress for murder+accom. Judges=inconsistent in reasoning: a) lack consistency vs. murder+accomplice. Why not rule that murder AND accomplice use defence? b) Ordinary man of reasonbale fortitude: death=final, never reasonable to kill, not out of ordinary to make a sacrific to not kill i.e. war, human vulnerability though?Every person to be a hero? Jury also allowed to reject defence=safety mechanism. Too high a standard? c) When being threatened to kill or be killed, taking another life is so serious can never on balance of reasoning be OK. Contrary to 'excuse' interpretation of duress, what if threaten to kill whole fam 4 vs. 1? Balance of evils? d) Law Comm discussed: recomended duress apply to murder but not acted by Parliament. Why didn't they react to Lynch? poor reasoning. e) Prosecution discretion reasoning: poor, relying on prosec is unprincipled way to solve prob. f) Act inexcusable/excusable difference=total aquittal or mandat life sentence, law comm have recently argued duress can be used for GBH but not murder, but can intend GBH then V dies? odd distinction, almost wait for result i.e. if V dies, murder and cant use, if v lives=can use?!!!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. 

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- Justified on BALANCE OF EVILS!! Courts v.reluctant to apply as test could lead to unwanted acquittals. It is a v.problematic defence and lacks the strict elements for application. It allows explanation and motive to apply in criminal law. i.e. stole food as hungry!! Last resort defence!

- Southward London Borough v Williams (Lord Denning): early reluctance of the defence: 'if hunger were once allowed to be an excuse for stealing, it would open the door through which all kinds of lawlessness and disorder would pass...if homelessness were once admitted as a defence to trespass, no ones house could be safe. Necessity would open a door which no man could shut.'= indeterminate potential!

- Hidden def? Theft Act 1968 s. 5: dishonesty&meaning: 3 examples when not dishonest. Necessity type offence. 

- F v West Berkshire HA (Lord Goff): terminology of necessity not used but main driving force. V in mental health auth, sectioned, high chance of V developing sexual with another and pregnancy likely. Could D (HA) force sterilsation? If not consenting to it =OAP, could held YES, was in V's interest and not OAP, a necessity! balance of evils & right thing to do. Affirmed in Gillick v West Norfold AHA (doctor gave pill to underage, encouraging sex but right thing to do, used Woolin!

- Road Traffic Reg 1984 s.87: emergency vehicles can ignore speed limits. Balance of evils! 

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Necessity - defence to murder?

- Dudley & Stephens 1884 (Lord Coleridge): 'often compelled ot set standards we cannot reach ourselves and lay down rules we could not ourselves satisfy', cabinboy eaten by friends as shipwrecked, if dont eat all will die, discussed who to eat+boy=weakest, recovered later, offence of murder? morally boy would of died, charged, claimed necessity, balance of evils but not accepted. Unfairness of choosing V meant defence couldnt apply. Murder never acceptable. Indicative that necessity WONT apply to murder. BUT... 

- Re A (Children) 2001 (Brooke, Ward, Walker LJ): parents didnt want twins separated, Mary=no chance, Jodie did. Allowed docs to separate? Balance of evils. Murder vs. necessity. Difficult to use Woolin to avoid liability as allows jury to find what they like and doctors not comfy with this. Considerations court will take into a/c/criteria obiter only though: 1) act needed to avoid inevitable and irreparable evil. 2) no more should be done than is necessary for purpose to be achieved. 3) evil inflicted must not be disproportionate to evil avoided (balance of evils). This HAS created a precedent. Self-defence couldnt apply as relies on Mary attacking Jodie. Duress couldnt as cant for murder. Last option was necessity. Applicable to medical only? Policy decision? Uncertainty?

- Dennis (2009) Crim Law & Philosophy: autonomy vs. balance of evils. Everything turns on word 'reasonably': flexible standard req. accomadation of competing values. Cannot trade autonomy against other values. Gives example of refusing to give blood. Autonomy should prevail and LJ Brroke's principle if applied w/out qualification could leave the matter of autonomy in doubt!

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Necessity - defence to murder? 2


- Confine the defence of necessity in relation to murder to cases of children only. This distinguishes then between the standards that we can expect from children vs. adults whilst ensuring that the door is not opened widely and cannot be shut.

- Is it really reasonable to expect someone to give their life for another in the event that both are likely to die? Surely the balance of two evils should prevail. One life is better than none.

- Adopt Ward LJ’s approach in that it must be immediate/imminent i.e. as in other areas of the law requiring immediate threat such as duress of circumstances etc. which ensures the important ‘necessity’ requirement, thus keeping Dudley intact as there was no immediacy and ensuring the law of euthanasia is intact.

- The law cannot apply to one case as it suits the policy and moral reasons but not to another because the judges morality standards are higher. English law requires consistency so that citizens are aware of the standards that are expected of them. 

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Necessity looking forward

- Quayle: 2005 CoA: (d cultivated+imported canabis for medical use of pain relief. Defence of necessity pleaded, pain involved=disproportionate vs. misuse of drugs act. Defence rejected. Necessity could be used for med research but not an individual on own back!! Re A cant apply.

- Lee Altham 2006 CoA: personal use of canabis for pain relief following road accident. Tried necessity but rejected. Tried to rely on Art 3 ECHR: inhumane/degrading treatment. NO!

- Highjacked planed? shooting them down, debate whether gov could use necessity here. Germans openly say would use defence of necessity, right to human dignity v.imp in Germany. 

- Other cases? Necessity=explicit Penal Code Victoria=well set out!

- C.M.V. Clarkson 'Necessary action: a new defence' 2004: Collapse duress by threat/circumstance, necessity,+self defence, 1 general defence of necessity= necessary action, resolve anomalies that exist due to the difficulties of classifications, inc. arguments over the extent to which necessity can be raised+ relationship with DoC. Doesnt deny any validity in distinction of justification+excuse. Distinction not helpful when considering the relationship between DF, DbT/circum+necessity. The present separate classification of defences has meant developed differently, but rule differences not necessarily rational/sustainable. New defence of necessary action=simple+ enable focus to be on the true issue that unites the present defences: was it a reasonable and proportionate reaction to that danger.

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Self-Defence overview

D has the defence to any crime involving force (against the person/property) committed in order to protect legitimate interests: Rules of the two overlap, although developed separately:

1. Private (most common): acting to protect oneself, others or property. (Common law+s. 76 Criminal Justice & Immigration Act 2008) JUSTIFICATORY (right thing to do!)

2. Public: acting in prevention of crime or making arrest (s. 3 Criminal Law Act 1967). 

Two Stage Approach:

Stage 1: Was the use of any force necessary? SUBJECTIVE (honestly believed) Gladstone Williams: reasonableness/unreasonableness of D's belief=material to Q of whether belief held at all. If held, unreasonableness is neither here not there and it is irrelevant. (Lane LCJ)

Stage 2: Was the amount of force used reasonable? OBJECTIVE (partially, as based on facts as D believed them to be but also reasonable man test). Proportionality. Criminal Justice & Immigration Act 2008, s76(3): Q whether the degree of force used by D was reasonable is to be decided by reference to what D believed them to be...All about the ACTIONS not the RESULT i.e. push and hit head and die, the pushing is relevant not death. The 'right' kind of action to take. 

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Self-defence: Stage 1

Stage 1: Was the use of any force necessary? SUBJECTIVE (honestly believed) Gladstone Williams: reasonableness/unreasonableness of D's belief=material to Q of whether belief held at all. If held, unreasonableness is neither here not there and it is irrelevant. (V diff to duress!). 

- Gladstone Williams 1984: man named Mason saw woman being robbed. Chased attacker. Inned him and tried to take to police. Man ran off, chased again, hit him and thrust arm. Could be public defence or private. Williams on the bus seeing what happened, mistakes preventer Mason who lies and says copper, Williams hits Mason and causes ABH thinking he is just beating a kid (mistakenly), Williams honestly believed protecting kid, self-defence, reasonableness of Williams actions? 1st inst: reasonableness not allowed. CoA: found differently: as long as reasonable=ok!

- Beckford v R 1988: Supported Gladstone case that clarified law.

- Dewar v DPP 2010: Fight between 2 adults @football match, 15yr old kicked by adult in match. Parent angry,punched in face after running on pitch, necessity of force? Protecting son but evidence of apologising= is this recognition of unnecessary force? Court clarified: about time-specific not if thought not necessary afterwards, self defence allowed! Reasonable at time!

-ONE EXCEPTION: mistake arising from voluntary intoxication. Prior fault!!!!! Hatton and O'Grady

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Self defence: Stage 2

Stage 2: Was the amount of force used reasonable? OBJECTIVE (partially, as based on facts as D believed them to be but also reasonable man test). Proportionality. Criminal Justice & Immigration Act 2008, s76(3): Q whether the degree of force used by D was reasonable is to be decided by reference to what D believed them to be...All about the ACTIONS not the RESULT i.e. push and hit head and die, the pushing is relevant not death. The 'right' kind of action to take. 

Hybred: must be objectively reasonable in circumstances D believed them to be. 

- Palmer v R (Priv Council) 1971: jury told when looking at reasonableness should take into a/c that D shouldnt have weighed to niceties of what doing. Reacting instantly should show acting reasonably. Less likely to be revenge! This indicates the laws allowance for moral appreciation as D may not have the time to think and must think quickly often! This case was codified in S.76(7). 

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Self-defence: what if fail 2nd stage?

- Where force is necessary but level of force is unreasonable. General feat that homeowners were vulnerable to crim action, but no, if wake up and being burgled, think they have a knife, law is on what honestly believe..if act instinctively, recognition that cant take a/c of niceties of response! 

- Martin (Anthony) 2002: Farmer in Norfold discovered 2 boys had broken in, chased them and as running, shot them and killed 1. Tried to use self-defence but unsuccessful as degree of force as running away=disproportionate. Despite disapproval of justice system on appeal, could use diminished resp as suffering w/stress/mental condition. 

- Munir Hassain 2009: despite calls for reform, burglarly, tied up D and his family, chased them and beat to death w/cricket bat, failed on reasonablessness, yes use force but after few hits became revenge like and unreasonable. 

- Partial defence to murder? new excessive self-defence? No acquittal in cases: Clegg 1995: soldiers shot car that refused to stop-shots that killed were after car passed, after any danger. Partial defence argued but HoL's rejected. Law Comm discussed possibility, decided not to recommend-under loss of self control (fear of violence) could do same job as partial defence.

- Conservative wanted to bolster law 4 homeowners, v.criticised, homeownership vs. life. Crime & Courts Act 2013: use of force in residence. Any force as long as not grossly disproport.

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Self-defence: What can D do? 1

1. Act primitively? defences do not rule out pre-emptive force. Imminence (honestly believed) is important for force to be deemed necessary to avoid vigilantism. No requirement to wait for threat to happen. Devlin v Armstrong: following clashes w/police+rioters, D built petrol bombs for use against police, argued self-defence and honestly believed police would unlawfully attack and protecting himself. Court held pre-emptive could be ok but in the particular ground in the case, not imminent enough so not allowed. No evidence of unlawful police activity. Court recognised pre-empt ok sometimes

2. Self-defence and abused women? Much more appealing as total acquittal. Pre-empt is useful when wife fears threat but imminence would cause problems as usually when husband asleep. 

3. Must D retreat from threat before can use defence?  No strict duty to retreat, force must be necessary. Field: can use self-defence when D held ground, but refusing to retreat=different from going+looking for person. Bird: woman pushed and slapped by V so D hit out+used glass. Serious injury, reasonableness? 1st inst: wasnt allowed to use self-defence as too willing to fight and should show restraint. CoA: overruled and conviction quashed. If force subjectively necessary+reasonable, unwillingness to retreat=irrelev!

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Self-defence:What can D do? 2

4. What if D provoked attacked from V and then defended himself? Defences only ruled out where D manufactured situ in order to use self-defence. Must come to crim w/clean hands, no prior fault. Seen in relation to being part of a gang and automatism (realising not taking insulin will cause harm when driving). R v Rashford 2005 CoA: fight between 2 groups, V stabbed, confusion w/facts, evid that D arrived looking4fight, when started, D argued stabbed in self-defence, jury directed that D couldnt use self-defence if D has looked for fight/approahed V. CoA didnt accept this: self-defence will not be simply ruled out because go looking for fight, depends on circumstances i.e. goes looking for fight but V pulls knife, so should be able to use self-defence.

5. Human rights implications: Art 2 ECHR: allows for killing in self-defence but only where it is reasonably necessary. Is this in conflict with English law that doesn't require good reasons, only an honest belief that necessary, not reasonbly believed. Two different standards? Still no cases to see, Andrew Ashworth good article here. R(Bennett) v HM Coronor for Inner South London 2006: coroners direction to jury: police officers use of deadly force, looked at ECHR, said broadly compatible. Stress the reasonableness 2nd stage but issue is potentially with stage 1 really. Avoided the Q. 

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Self-defence reform and commentary

1. Use of force in self-defence at place of residence (2013, Home Office), coalition gov=new heightened defence for homeowners. 

2. Self-defence interesting in terms of blameworthiness: disproportionate aspect for property since 2014 does not fit hand in hand with blameworthiness. Policeman are held to same standard as regular person i.e. Mark Duggan. Policeman, mistakenly believed Mark had a gun, was allowed to react on basis of mistaken belief. BUT… should we hold police to a higher standard? They are trained to do these things. Contrast this w/murder when people not always genuinely blameworthy i.e. duress/necessity but held to be blameworthy. Self-defence and other defences in terms of blameworthiness do not sit well together in terms of justifiability! Only threat of death or serious injury can apply, but threat 'I will burn down your business and take everything'=cant use duress! In duress, act on basis of mistake i.e. ill get you but D thinks death is ok but mistake must be reasonable UNLIKE in self-defence=notable conflicts and differences between two. Very contradictory that English law places such importance on life, standards expected etc. but not in self-defence. Seems that self-defence developed at twice the pace of other defences like duress.

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Self-defence justification approaches

4. Fiona Leverick ‘Defending Self-Defence’ 2007 review of B. Sangero, Self-Defence in Criminal Law (Oxford: Hart, 2006). 2 approaches to the justification for SD: Rights/forfeiture (Fiona's) vs. consequentialist (Sangero's). SD can be problematic as it permits the victim of an attack to preserve her own life at the expense of another. If all human life is equally valuable, it is difficult to explain why we should permit individuals to make such a 'trade-off’. Consequentialist=consequences of killing/injuring V in SD are preferable to the consequences of allowing D to be killed/injured=balance of two evils test= by virtue of moral blameworthiness, the aggressor renders her own life less valuable than that of the attacked person because 'the aggressor's guilt is used as the basis for a certain devaluation of his interest (but Fiona argues: this argument sits uneasily with the notion of treating all human lives as being of equal value). The idea that a rule permitting self-defensive force would deter aggression+promote maintenance of law+order in society (Fiona argues:to judge an action purely on the basis of its consequences is to neglect issues of individual rights+justice). Rights/forfeiture approach:permissibility of self-defensive force stems from the attacked person's right to life but criticised as discomfort with the concept that a fundamental right to life can be temporarily forfeited. Law in US, (Florida) =opposite direction: abandoned retreat rule 'Stand your ground Bill' permitting any person who is not engaged in unlawful activity+who is attacked in any place where she has a right to be to use deadly force against attacker w/out having to take a safe opportunity to escape. Whichever approach is preferred, such developments=worrying trend.

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Self-defence: justification vs. excuse

3. Suzanne Uniacke 1994 'Permissable killing: the self-defence jusitifcation for homicide: permisability of SD grounded by act of resistance, repelling or warding off an unjust immediate threat. Questions whether justifed or excused. Justified conduct can be permissable (weak) or right (strong justification). Distinguishes between objective legal justification vs. agent-perspectival moral justification to categorise SD as justified or merely excused. Objective=all things considered/fully informed justification. Agent-perspectivally justified=raise fist in triumph but mistake it for attack, not objectively justified+depends on reasonableness of belief+ is morally justified even in absence of legal objective justification but is really an excuse as on agents practical reasoning not objective rightness/wrongness. Morally innocent can be killed in self-defence (young/insane) but this doesnt stop them from posing unjust immediate threats that can be resisted, repelled or warded off by necessary/proportionate force, no objectively justified reasons underpin what they do in posing a threat+use of reasonable force=permissible SD. 

4. Aileen McColgan 1993: In defence of battered women who kill: SD more adquately reflects many cases +if properly understood/applied, more likely to result in acquittal than DR would be to avoid a murder conviction+continue trend USA estb. SD to battered women doesnt require extension just rethinking of way D's force be reasonable in other cases to traditional model of a one-off stranger meeting. SD=justificatory defence and this aspect underlies unease applying it for unconventional cases. SD for battered women could save lives of women and abusers. 

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