JUSTIFICATORY DEFENCES

JUSTIFICATORY DEFENCES

Substantive defences are defences to fully constituted crimes. There is mens rea, actus reus but the circumstance render D either partially or wholly not to blame for his action. The are either excusatory (conduct which are wrong in law, but excused in certain circumstances) or justificatory (conduct which are justified is permissible and therefore not wrong in law).

SELF DEFENCE:

s.3 of Criminal Law Act 1967. For self defence, force must be necessary. Gladstone (Williams) 1984. Honest (subjective) belief that force is necessary is adequate. It is only if the mistaken belief is induced by intoxication that it must be reasonable (objective. Article 2 of Human Rights Act: life can only be taken where it is absolute necessary. Bird (1985) It was reasonable to use force rather than peaceful escape, pre-emptive strike in Beckford (1990), Browne (1972). Where D provoked victim he cannot rely on self-defence Balogun (1999).

Force may be used to defence property provided the force used is reasonable (Martin kill in defence of property). Standard to be used is ordinary standard of reasonable person Owino (1995. Proportionality is also import for example killing to prevent killing and not to present assault. The defence cannot be used to reduce a charge of murder to manslaughter. It is a total and full defence.

NECESSITY

This is a very narrow and difficult defence to use London Borough of Southwork v William (1971). House of Lords said, necessity would open a door which no man could shut e.g. hunger as a defence for stealing, homeless as a defence for tresspass. Duddly and Stevens (1884) Men marooned at sea wreck and 3 of them decided to kill and eat the cabin boy to survive hunger. Plea of necessity rejected by the courts. Re A (Conjoined Twins) 2001 and Re F (Mental Patient: Sterilisation (1990)sterilised mentally unbalanced person who cannot consent. The defence may be available in common law where:

It is in the best interest of the patient - Re F (1990)
D has statutory duty to act - Police officer (Johnson Philips (1978)
In exceptional cases such as Re A (2001) where it is necessary and proportionate to avoid an 'inevitable' evil. Narrowly applied defence.


EXAMINATION ADVISE

Never assume that D would be charged for an offence. Go through the actus reus and mens rea


EXCUSATORY AND MENTAL DISORDER DEFENCE


DURESS

Form of pressure put upon D which compelled him to act unlawfully. It may come from another person (duress by threat) from situation (duress of circumstance. It must involve serious threat of death or injury Howe (1987)and it is not a defence for murder [Golfs (1992)], but available for other crimes.

Threats i.e of death or serious injury. Threat to property will not suffice. Threat to D or another. Threat need not be directed to D [Pomwell 1995)]; Conway (1988) and Martin (1989). The threat must not come from D himself - Rodger and Rose (1998)

Threat must be operative at the time of the offence and must compel D to act. Valderrama-Vega (1985)

Defendant must not put himself in a position where he is likely to be threatened [Sharp (1987) who joined a gang of Armed Robbers; Shepherd (1988); Heath (2000)heroin addict

Mistake as to threats: Reasonable belief as to existence of threat would suffice [Graham (1982)]. Honest belief would not suffice. Inconsistence was criticised in Safi (2003) but Court of Appeal approved Graham.

Threat must be imminent harm: Threat that would be carried out immediately and there is no avenue for escape. If the threat is not immediate, it must be imminent enough to operate on the mind of D.

Read Hudson and Taylor (1970_ Heath (2000) Hassan (2005) - Drug addicts who acted under duress.

The jury will examine

whether D had the opportunity to escape

Whether a sober person of reasonable firmness sharing D's characteristics would have responded in the way D did [ Graham (1982)]. Objective decision like defence of provocation.

Whether the threat would have overcome the will of a person having the ability to resist threat which can reasonably be expected of a person with D's characteristics (Bowen (1996)].

Duress of circumstances [William (1986) should have been left to the Jury. Road trafic cases - Conway (1988); Havis (1994); Powell 91995) and it apply to all offences except murder and attempted murder. Being a branch of duress all requirements of duress must be satisfied.