Defences

·         The case law on specific and basic intent is confusing. The various definitions given by different judges perhaps illustrate the need for statutory clarification.

·         The exact meaning of involuntary intoxication is not clear. The Law Commission have proposed creating a non-exhaustive list of circumstances under which intoxication is not voluntary e.g. where the intoxication happened (1) without consent; (2) under duress; (3) where D reasonably believed it was not an intoxicant; (4) for a ‘proper medical purpose’. Law Commission, Intoxication and Criminal Liability (2009) (Law Com No 314).

·         Some have questioned the policy grounds for excluding evidence of voluntary intoxication for crimes of basic intent. Whilst the public must be protected from drunkards it must surely be in very rare cases where D’s capacity has been completely obliterated such that he could not have even contemplated a risk? So if the matter were simply left to the jury the number of cases where D was actually acquitted would likely be very small. Indeed, this is the approach adopted in South Africa, Australia and New Zealand and there is little evidence of a proliferation of acquittals in these jurisdictions. See Gerald Orchard, ‘Surviving without Majewski – A View from Down Under’ (1993) Crim LR 426.

1.      Was D forced to act as he did because of a reasonable fear of death or personal injury?

The first question is subjective as it must be established what the D felt. There are six aspects to this question:

i.                    The threats must be of death or serious physical violence to D, D’s family or others for whom D is responsible – fear of property damage, blackmail, imprisonment (R v Van Dao [2012]) or psychological injury are insufficient (R v Baker & Wilkins 1997).

ii.                  The threats must cause the crime but need not be the sole reason for acting (R v Valderrama-Vega [1985])

iii.                The threat must be of immediate harm so that D could not reasonably be expected to take evasive action (R v Hasan [2005])

iv.                 The threatener must nominate the crime (R v Cole [1994])

v.                   The threat need not exist in fact so long as D reasonably fears that it does (R v Cairns [1999]

vi.                 A genuine belief in an immediate threat is sufficient (R v Martin (David Paul) [2000])

The second question is objective: would a sober person of reasonable firmness, sharing D’s characteristics, have responded in the same way?

Sex and age, as well as pregnancy and serious physical disability are all considered (Bowen [1996])

Timidity is not, as reasonable fortitude is required. Only medical conditions which render D less able to resist threats are considered, for example a low IQ is not (Bowen).

The defence will fail where D associates with others whom he knows or ought to have known might subject him to any compulsion through threats of violence (R v Fitzpatrick [1977], R v Hasan).

Marital Coercion is an alternative defence for married women under S47 Criminal Justice Act 1925. It requires no threat, and is largely subjective.

Re A (Conjoined Twins) [2000] 4 All ER 961 – two conjoined twins joined at the lower abdomen, they had their own heart and lungs but one was being kept alive by the stronger twin who would not be able to keep up such a feat for long. The doctors wanted to separate, but the parents on religious grounds refused. The doctors applied to the courts the CoA, said that by separation the doctor would be murdering the weaker twin under the Woolin approach. In the House of Lords, LJ Ward suggested it was merely a quasi-self-defence for the stronger twin, and the judges implicitly acknowledged necessity, they also noted other theories. LJ Brook rested solely on necessity. He stated three requirements for necessity (1. The act must be needed to avoid an inevitable and irreparable evil. 2. It must be no more than is reasonably necessary for that purpose. 3. The evil to be inflicted must not be disproportionate to the evil avoided) he also said his decision was limited to the unique facts of the case. 

-          The ratio is therefore limited to Ward and Brook. Defence of necessity can only apply where A is designated for death and B will die unless A is killed.