Defences (criminal)

  • Created by: Nikki
  • Created on: 01-05-15 20:14

Consent (1)

In sexual offences, lack of consent is an element of the offence 

In OAP, consent is a defence in some cases

AG's reference 6/1980 -->

  • defence to common assault or battery
  • threshold = ABH --> past this consent is not a defence
    • sports
    • dangerous exhibitions
    • surgery 
    • tattooing
    • rought and undisciplined horseplay
  • public interest

Brown (1993) --> consensual sadomasochism --> consent is NOT a defence --> not willing to add further exception (matter for Parliament)

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Consent (2)

Majority view

  • AR of s47 = unlawful touching
  • consent is a dfence
  • question for court = should consent be allowed to negate liability for violence in Brown?
  • conduct in Brown is criminal
  • need good reasons to make it lawful

Minority view

  • AR of s47 is unlawful if it is not consensual
  • lack of consent as element of offence
  • question for court = should we criminalise the behaviour in Brown?
  • individual autonomy
  • conduct in Brown is lawful
  • need good reasons to make it unlawful
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Consent (3)

Cases after Brown

  • Wilson (1996)
    • consent as defence
    • analogy with tattoing 
    • law develops on case-by-case basis
  • Emmet (1999) 
    • consent no defence
    • degree of risk

Consent and HIV --> 

  • Dica (2004) 
  • Konzani (2005)
    • s18 OAPA consent cannot be defence
    • s20 OAPA iinformed consent can be defence
  • choice and autonomy 
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Consent (4)


  • when should consent be allow as a defence to physical injury? --> depends on guiding values
    • individual autonomy
    • paternalism
    • risk-reduction
    • moral outrage
  • public interest
    • coherent rationale?
    • clear boundaries?
  • approaches to consent
    • good reasons to allow as defence
    • good reason to withold as defence (A&H)
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Duress (1)

Duress by threats; duress of circumstances --> same legal requirements

Excuse --> D's actions wrongful but D is not blameworthy 

D commits crime against an innocent V --> contract with S-D

Courts take restrictive approach to duress

Complete defence --> if established, no liability

Hasan (2005) --> limitations to duress --> for D to rely on duress...must be...

  • threats of death or GBH
  • threat directed against D, D's immediate family, someone close to D --> someone for who's safety D would reasonably regard himself as responsible
  • reasonable belief in threat --> reasonable response
  • D's criminal conduct must have been caused by threats
  • no evasive action available to D --> threat must be imminent and unavoidable
  • no prior fault --> D must not have been cause of threats (D must not be allowed to take advantage of a condition if this arose due to D's own prior fault) 
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Duress (2)

  • Sharp (1987) 
    • D member of gang of armed robbers --> wanted to stop but another member said keep going or I'll blow your brains out --> couldn't plead duress due to prior fault of association with robbers
  • Hasan 
    • D charged with burgalry --> said forced to commit it by S --> S told D if he didn't S would harm him and family --> D had voluntarily associated with S, so had foreseen or ought to have foreseen risk of being subjected to compulsion by threats of violence --> couldn't rely on duress
  • law driven by driven by desire to discourage association with known criminals
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Duress (3)

Duress and reasonableness

  • Did D have reasonable belief in threat?
  • would sober person of reaosnableness, sharing D's characteristics, have reacted as D did?
    • Graham (1982)
    • reasonableness emphasised in Hasan
    • Bowen (1996)
      • Characteristics
        • sex 
        • age --> e.g. this may affect D's ability to resist a threat
        • pregnancy --> e.g. may affect seriousness of threat due to added threat to unborn child
        • physical disability --> e.g. may be relevant to reasonableness of not escaping in face of threat
        • recognised mental illness --> limited to recognised because courts want to limit claim based on mental capacity 
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Duress (4)

Not a defence to murder or attempted murder --> because never right to take another's life --> even if faced with death ourselves we should not choose to take life of another

Wilson (2007)

  • D = 13 year old boy
  • duress not available as defence to murder (court reluctantly had to follow precedent of Howe)
  • 'There may be grounds for criticising a principle of law taht does not afford a 13 year old boy any defence to a charge of murder on the ground taht he was complying with his father's instructions, which he was too frightened [...] to disobey'
  • obvious injustice?

Law Commission 2006 --> extend duress to murder cases --> defence would still be restricted to requirements as stated before --> and still have to be reasonable response to threat

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Necessity (1)

Lesser of two evils --> where D faced with situation where whatever he does will cause har, but he chooses the lesser harm

Justification for D's action


  • no general defence of necessity
  • courts generally suspicious of this defence
  • can be applied fairly often in medical cases
  • Southwark LBS v Williams (1971)
    • Denning --> e.g. hunger and stealing; homlessness and trespass (as in case)
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Necessity (2)

Necessity and murder --> Dudley v Stephens (1884)

  • plea of necessity dismissed
  • rejects ultilitarian approach to human life
  • ratio of D&S
    • no defence of necessity fo rmurder? (cf. Howe)
    • or is problem the method of choice? --> youngest and weakest --> actions seem to suggest his life less valuable and therefore death justified -->
      • what if they had all drawn lots? perhaps stronger argument of necessity?
  • utilitarian view of life that courts rejected and use of human life simply as means to an end --> courts fearful of result of allowing utilitarian approach to life
  • more complex evaluation of case premised on method of choice doesn't necessarily rule out necessity as defence to murder
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Necessity (3)

Necessity allowed as defence

Re F (1990) --> sterilisaiton case --> courts said doctors shielded by defence of necessity given that F couldn't give consent but it was in her best interests

Re A (2000) --> conjoined twins separation case --> necessity allowed but principle difficult to find

  • Brooke LJ (quoting Sir James Stephens)
    • 3 necessary reequirements 
      • act is needed to avoid inevitable and irreparable evil
      • no more should be done than is reaonsable necessary for purpose to be achieved
      • evil inflicted must not be disproportionate
  • Is Re A reconcilable with D&S?
    • M 'designated for death' --> method of choice
      • D&S distinguished --> but aren't they both designated for death and couldn't cabin boy be too?
    • facts of Re A automatically limit defence --> exceptionally rare circusmtances and will always require a court declaration
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Necessity (4)

  • Nicklinson (2013) --> man with locked in syndrome sought declaration that if wife ended his life she would have defence of necessity --> courts said no because it was completely limited to facts of Re A --> could not extend law to assisted suicide and facts of Nicklinson not close enough to that of Re A


  • M killing J
  • couldn't we sya that in D&S boy is killing others by eating food? --> very difficult line of argument to follow
  • perhaps shouldn't stretch limits of s-d in this case --> should we just admit that J was the obvious choice?

When is it ever permissible to say that one life is worth more than another

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Duress and necessity

  • different rationale
  • duress = narrower --> only available when threat of death or serious injury
  • duress = wider --> covers cases where D reaosnable believes there is a threat when in fact there isn't
  • necessity may be a defence to murder (cf Re A)
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