DEFENCES
The aim of this section is to build on your understanding of criminal offences by looking at the relationship between these and defences.
Broadly there are four areas covered by defences that impact on most criminal offences. These relate to: -
Generally speaking what is the nature of the defences that deal with capacity, those that deal with negation, those that deal with affirming and the role of EU and Human Rights law? (D&G, pp. 597-598).
The major premise of criminal law rests on the idea that human beings have the capacity to choose between 'right' and 'wrong'. Such a premise may be rebutted by evidence to the contrary such as children, insanity and automatism. Where the evidence is accepted the accused is not held criminally responsible
CHILDREN
1. Consider the following:-
The legal meaning of Presumption, irrebuttable presumption, rebuttable presumption.
When discussing the relevance of age does the law look at chronological or biological age? What should the law consider and why? (D&G,p.184).
2. Can a child under 10 years of old be held criminally responsible?
Walters V Lunt [1951] 2 All ER 645, (D&G,p.183).
3. Jenny sends her 7-year-old son, Sam, into Marks and Spencer to pick up a jumper and put it in his bag. Jenny grabs him and leaves the store. Has a crime been committed, if so how? (D&G, p. 184).
4. Write a brief and critical assessment of the doli incapax rule. (50 word limit). (D&G, p. 184-189).
INSANITY
1. What is the legal test of insanity?
M'Naughten's Case (1843) 10 CL & F 200, HL, (D&G, pp. 189-192).
2. What is meant by 'disease of the mind'?
R v Sullivan [1984] 1 AC 156, HL, Hennessy [1989] 1 WLR 287, CA, Quick Paddison [1973] 3 All ER, 347, T [1990] Crim LR 256, (D&G, pp. 192-198).
3. There are two ways in which the accused who is suffering from a disease of the mind can come within the reach of M'Naughten:
a) show s/he did not know the nature and quality of act; or
b) show s/he did not know that what s/he was doing was wrong.
What is meant by the word 'wrong'?
Windle [1952] 2 QB 826, CA, Sodeman [1936] 2 All ER 1138, PC, (D&G, pp. 199-201).
4. Read and briefly summarise the consequences of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, (D&G, pp. 201-203).
AUTOMATISM
1. What are the two types of involuntary act cases? Burns v Bidder [1966] 3 All ER 29, Bratty [1961] 3 All ER 523 HL, Quick, Paddison [1973] QB, 910,CA, (D&G, pp.207-214).
2. What is the position in law as regards self-induced automatism?
Bailey [1983] 1 WLR 760, CA, and sleepwalkers? Burgess [1991] 2 QB 92, CA, (D&G, pp. 214-218).
B. NEGATING AN ELEMENT OF THE CRIME
To negate is to deny the existence of something. In criminal law this denial usually relates to the actus reus or mens rea of an offence.
MISTAKE
1. How might a mistake lead to the negation of an element of an offence? (D&G, p.598).
2. What is the distinction between a mistake of fact and a mistake of law? R v Ellis, Street and Smith (1987) 84 Cr App R 235, CA, R v Bailey (1800) Russ & Ry 1, (D&G, p. 599 & 609).
3. Does a mistake have to be a 'reasonable' one? Morgan [1976] AC 182 HL, Kimber [1983] 1WLT 1118, CA,Tolson (1889) 23 QBD 168, Williams (1983) 78 Cr App R 276, CA, Graham (1982) 74 Cr App R 235 CA, (D&G, pp. 599-606).
4. Jan has been using cocaine. During her intoxicated state she believes Clive (her son of 6 years) is a secret agent midget who has come to dispose of her. She attacks Clive injuring him seriously. Can she argue that she has a defence on the grounds of mistake? O'Grady [1987] 3 WLR 321 CA, Jaggard v Dickinson [1980] 3 All ER 716 QBD, (D&G, pp. 606-608).
INTOXICATION
How should the law respond to people who become intoxicated through alcohol, drugs or medication? Should we 'throw the book at them' (let them take the consequences)? Should we make special provision for them in order to distinguish them from those who commit crimes whilst sober? What does the law say? That depends on how a person has become intoxicated. Was it voluntary? Were they tricked? Did they drink in order to summon up courage?
Volunteers
1. Voluntary intoxication is not a defence to crimes. How might it be relevant? Majewksi [1977] AC 443 HL, (D&G, pp.613-4).
2. What are crimes of specific and crimes of basic intent and why is the distinction important in the he context of voluntary intoxication? (D&G, p.614).
Non-volunteers
1. Would criminal liability follow where a person's drinks were spiced and they did not know it, and under the influence they committed an offence? Kingston [1994] 3 All ER 354 HL, Hardie [1984] 3 All ER 848 CA, (D&G,615-623).
2. What if Daniel is aware that he is taking drugs but is not aware of the effect of those drugs, consequently he commits a crime? Allen [1988] Crim LR 698.
Dutch Courage
Where the defendant gets intoxicated in order to summon up the courage to commit a crime, the rule in Gallagher applies. What is that rule? Gallagher [1963] AC 349 HL, (D&G, pp. 623-625).
Intoxication and Insanity
What did Stephen J mean in Davis when he said, "Drunkenness is no excuse, but delirium tremens caused by drunkenness may be an excuse..." Davis (1881) 14 Cox CC 563, (D&G, p. 626).
Duress, Necessity and Duress of Circumstances
Here we ask under what conditions might the accused rely on one the of above defences. By way of introduction consider the following true story.
THE CASE OF THE WRECK OF THE MIGNONETTE
On the 19th May 1884 four men set sail for Australia from Southampton
in a yacht called the "Mignonette". They were Dudley, Stephens Brooks and
Parker. Parker was the 17 year old cabin boy.
During the voyage a storm arose causing a huge wave to smash into the side of the yacht. Whilst the yacht sank the men got off with only two tins of turnip between them. They scrambled into an open boat. The sailors were cast away in the middle of the Atlantic ocean, 1600 miles away from land with only the turnips to keep them alive. After nine days and some 1000 miles from land with no food and no rain water to drink the sailors were desperate. They believed that they would die.
There was one chance of survival 
for three of the crew. Someone would
have to become food for the others. The question was who? Parker, was ill and lying
unconscious. He did not participate in the discussion of who was to die.
Dudley and Stephens decided that Parker should be sacrificed for the others. The
reasoning was that Parker was an orphan without a family and already on the brink of
death. Brooks wanted no part of the killing. While he covered himself with a
jacket at the other end of the boat Dudley and Stephens knelt over Parker.
Dudley took out a knife and plunged it into the boy's neck killing him instantly.
All three men drank 
the blood and ate 
the heart and liver. They were eventually rescued by a German
ship. On mainland Britain they were charged 
with murder.
1. If you were one of the judges in the case would you find the defendants guilty of murder?
2. Do you think that the accused might be able to rely on the defence of necessity?
To answer that question you will have to look at how the defence of necessity works.
(a)What is the defence of necessity? Cichon [1994] Crim LR 918, Bourne [1939] 1 KB 687, (D&G, pp. 628-631).
(b) Is the defence of duress the same as the defence of necessity? Cichon.
(c) Is the defence of necessity available to the accused on a charge of murder? Howe [1987] 1 AC 417 HL, (D&G, pp. 640-642).
The courts appear to have developed the defence of duress of circumstances.
1. What is the nature of such a defence? See Simon Brown LJ, in Martin [1989] 1 All ER 652 CA, (D&G, pp. 631-633).
2. The common elements of the defences of duress, necessity and duress of circumstances appear to be:-
 | the nature and immence of the harm avoided; |
| the nature of the harm caused; |
| the relationship between the harm avoided and the harm caused; |
| the perspective of the defendant or that of an ordinary person of reasonable firmness; |
| the relevance of alternative courses of action. |
(a) What harm must be avoided? Singh [1973] 1 All ER 122, McGrowther (1746) Fost 13, London Borough of Southwark v Williams [1971] 2 All ER 175, Hudson v Taylor [1971] 2 QB 202, (D&G, pp.633-637).
(b) Is killing a human being acceptable? See Dudley & Stephens, Howe (D&G, pp. 637-641).
(c) The nature between the harm to avoided and the harm caused involves the court in a balancing act? Did the court strike the right balance in Willer [1987] RTR 22 CA, (D&G, pp.642-643).
(d) From whose perspective? The accused or the reasonable person? Sharp [1987] QB 853 CA, Lewis (1993) 96 Cr App R 412, Bowen [1996] 2 Cr App R 157, (D&G, pp.643-647).
(e) What is the relevance of alternative courses of action? Gill [1963] 2 All ER 688, Hudson and Taylor [1971] 2 QB 202, (D&G, pp. 649-651).
Please read and summarise this section for yourself. It will not be the subject matter of class discussion. (D&G, pp. 655-668).
D. EU Law and Human Rights
The relationship between domestic criminal law and international law is a complex one. We will look at this area very briefly to obtain a basic understanding of the mechanics of it.
The Human Rights Act 1998 (HRA) contains a number of provisions. In particular it has incorporated the European Convention on Human Rights (ECHR) into English Law. However a number of its provisions do not take effect until October 2000. At this juncture it is sufficient to note that we are still considering its impact on criminal law.
Despite this uncertainty it is useful to look at a recent case that concerns among other things the question of consent in the criminal law. Consent is sometimes raised as a defence to a charge of assault. If successfully pleaded this will prevent conviction (D&G, pp. 304-5). However, there are limitations on effective consent.
1. Read the case of Brown [993] 2 All ER 75 HL (D&G, pp.305-307). What does the House of Lords say about the issue of consent to assaults?
2. Brown case was heard before the European Court of Human Rights. The Court said that it was necessary in a democracy for the state to limit effective consent. Do you agree? Give reasons for your answer.
The position as regards the law of the European Union (EU) is a little clearer in this respect. Britian has been a member of the EU since 1973, so there has been time to analyse the impact of such law on domestic criminal law.
1. What is the relationship between UK law and EU Law? Case 6/64 Costa v Enel [1964] ECR 585, (D&G, pp. 668-669).
2. Read Case 34/79 Henn and Derby [1979] ECR 3795. How does EU law provide a sheild to the accused?