Final Assessment

Scenario I - Mike and Linda:

In order to advice Mike, we have to investigate the defence of self-defence. According to

section 3 of the Criminal Law Act 1967,

“A person may use such force as is reasonable in the circumstances in the prevention of crime,
or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of
persons unlawfully at large.”1

In light of section 3 of Criminal Law Act 1967, and also the basic principle of self-defence
set out in Palmer v R (1971); approved in R v McInnes, 55 Cr App R 551; we can safely state
that the use of force could be lawful if it is reasonable.

To assess the reasonability of the force we have to perform two tests,

 Was the use of force necessary in the circumstances?
 Was the force used reasonable in the circumstances?

In case of Mike, Linda showed up at his home in the midnight, there is no mention of Linda
being armed or if she made any attempt to hurt Mike, however, Mike had some information
about the possibility of Linda’s armed arrival to settle a dispute. In this situation, we can get
some guidance from the cases of R v Williams (G) 78 Cr App R 276 and R. v Oatbridge, 94 Cr
App R 367. In these two cases, the courts have given guidance that we should see the
situation through the eyes of the accused. Mike thought that Linda would be armed and he
responded accordingly with the same amount of force that he was expecting to be used
against him.

Section 76 of the Criminal Justice and Immigration Act 2008 can also help us in this
situation. Mike’s case can qualify as a householder case based on the definition provided in
section 76(8A) where it clarifies that just for the purpose of self-defence the use of force
could be lawful if the defendant perceives that a trespasser is entering his place of
residence and mean harm.2

1
Government of United Kingdon, "Criminal Law Act 1967",
< https://www.legislation.gov.uk/ukpga/1967/58/section/3> Accessed July 23rd, 2020
2
Government of United Kingdom, “Criminal Justice and Immigration Act 2008”
< https://www.legislation.gov.uk/ukpga/2008/4/section/76> Accessed July 21st, 2020
Section 76 (5A) of the Criminal Justice and Immigration Act 2008 provides a discretionary
area of judgment in householder cases depending on the circumstances of each case
analyzed individually, keeping in mind how accused perceived them. 3

In Mike's case, two more areas should be explored before concluding, i.e. mitigating the
danger and waiting for the attack. In case of striking first to defend, the law does not
prohibit us (R v Deana, 2 Cr App R 75), and in the case of mitigating the danger leaving the
place is not necessary (R v Bird 81 Cr App R 110).

In light of the above findings, we can predict the promising chance of Mike’s acquittal on
the grounds of self-defence, however, he should pray for Linda’s life. There is no mention of
what happened with Linda after she got shot. In case she lost her life due to Mike’s actions,
then we should have a look at the public statement issued by CPS and National Police Chiefs
Council in 2018 under the heading of “Householders and the use of force against intruders”
where they mention that there is a very slim chance that a householder would be
prosecuted. However, in the public statement, there was a mention of two scenarios where
the householders were prosecuted. Firstly when the danger in the form of an intruder was
neutralized and the householder hurt or killed him afterwards. Secondly, when the
householder had some kind of knowledge about a presumed danger heading his way and
he failed to inform the authorities, instead he acted in a way to trap and kill the intruder. 4

My advice to Mick would be to consider the following facts before making a final decision
about self-defence. An intruder showed up at his home around midnight and he was
expecting her to be armed. Law gives him the right to defend himself by using reasonable
force and he can leverage householder situation. According to case law, there is no issue
regarding pre-emptive action and he is not obligated to mitigate the threat by moving away
from the danger. Things might become sour as Mike had some idea about the possibility of
Linda’s arrival around midnight and he failed to get the help of security forces. It is quite
obvious after going through the joint statement put out by CPC and NPCC that a person
should seek the help of police if he is aware of potential danger. Mike, however, failed to do
that, since he knew Linda might be armed, he acted with maximum force without giving Linda any
chance. This might get views in court as setting up a trap for the expected intruder, it would have
been much better to inform the police which would have avoided all of this.

3
Government of United Kingdom, “Criminal Justice and Immigration Act 2008”
< https://www.legislation.gov.uk/ukpga/2008/4/section/76> Accessed July 21st, 2020
4
CPC and NPCC, “Householders and the use of force against intruders (2018)”
<https://www.cps.gov.uk/publication/householders-and-use-force-against-intruders> Accessed July 21st, 2020
Scenario II - Patricia and Ian:

In order to advise Patricia about the availability of duress, it would be helpful to investigate
the principle of duress and apply the required tests. In Patricia's case, we should start our
investigation by checking the circumstances where duress is available as a defence.

“Unless and until Parliament provides otherwise, the defence of duress, whether by threats or
from circumstances, is generally available in relation to all substantive crimes, except murder,
attempted murder, and some forms of treason." 5

Duress is not available in case of murder and attempted murder as principle (R v Gotts
(1992) 2 AC 412). It is also not available in case of an accessory to murder in the role of an
aider or abettor (R v Howe [1987] A.C. 417). However, there is evidence in form of the case
of R v Ness and Awan [2011] Crim L.R. 645 where we can find evidence of the availability of
duress in the case of conspiracy to murder when there was a serious and fatal threat posing
him or his family.6

In light of the above discussion and case law it is quite clear that the defence of duress is
not available in the event of murder, an accessory to murder, attempted murder and
treason involving the death of sovereign (Axtell (1660) Kel 13, cited by Lord Simon at p.
697).

The case of Patricia involves robbery and has nothing to do with murder or attempted
murder. It seems that she might be able to benefit from duress, however, before coming to
this conclusion we need to perform the relevant tests.

Lord Lane CJ in Graham (1982)  74 Cr App R 235 made us aware that the test should
involve subjective and objective elements, to make things simple it was suggested that the
jury should be left to decide on the following two matters,

 Defendants' acts were in response to the reasonably perceived danger of death or

serious bodily harm.
 Evaluate and analyse the success of prosecution to prove that a comparable person
to the defendant would have acted differently in the same kind of situation. 7

5
R v Pommell [1995] 2 Cr App R 607, 615C (Allen, 20190726, p. 211)
6
Allen, M., Edwards, I. Criminal Law, 15th Edition. (p. 195)
7
Allen, M., Edwards, I. Criminal Law, 15th Edition. (p. 196)
To address the first question we have to take into account the present situation. Patricia
was threatened by Ian who abducted her sister and was showing his intention to kill her if
she does not rob a bank. Ian’s intentions seem quite genuine in terms of causing bodily
harm to her sister as he is already half done by abducting her sister. Danger to life is a kind
of threat that qualifies the defendant for the availability of duress (R v Quayle [2005] 1 All
ER 988). Even though the threat was not directly upon her, it was on her sister, however,
the case law supports this situation and allows the availability of duress (R v Wright [2000]
Crim. L.R. 510, CA).

Our Scenario does not profile Patricia, thus it would be hard to comment on how the
prosecution will prove that a sober reasonable person of the same firmness could have
resisted in this situation. Patricia did rob the bank and she had fair reasons to respond due
to the grave situation she was facing. The potential killing of her sister made her do this
unlawful act and that is precisely what she believed in.

Our scenario fulfils the condition of a specific crime imposed by the case of R v Cole [1994]
Crim LR 582 and the account of Patricia shows that her sister was in the custody of Ian
when she committed the robbery, thus establishing the effectiveness of the threat a the
time of the crime  (R v Hammond [2013] EWCA).

Under all these circumstances, I would advise Patricia to seek duress as her defence since
she has a very high probability to win her freedom. It would also be of value to mention
here that if Patricia can establish that she acted under duress, then the burden of proof will
fall on the prosecution to prove she was not (R v Bone, 52 Cr. App. R. 546 CA).

Scenario III - Penny and Pat:

In order to best advise Pat and Penny, we have to investigate the law regarding the
inchoate offences of Conspiracy and Attempt.

(a) Conspiracy

Conspiracy in the eyes of law is as follows,

“At common law, the offence of conspiracy was committed where two or more persons agreed
'to do an unlawful act or to do a lawful act by unlawful means.” 8

8
(Mulcahy (1868) LR 3 HL 306) (Allen, 20190726, p. 313)
It should be kept in mind that the offence of Conspiracy to establish, the crime does not
have to take place, just the planning of it gives rise to this offence (O’Connell v. R. (1844) 5
St.Tr.(N.S.) 1). Also, while establishing conspiracy it should be kept in mind that there is
supportive case law that completely disregards repentance, lack of opportunity, and failure
in completing the intentional task (R. v. Aspinall (1876) 2 Q.B.D. 48).

In our scenario, the facts stated gave the evidence that Pat and Penny did some planning
about their indented task. They targeted a bank and its specific location, and also reached
an agreement over time and date. This shows that they agreed upon a course of conduct
which is of utmost importance in the offence of conspiracy. In the eyes of law, this act gives
this meeting the status of the qualified agreement. The agreement in our case exhibits Pat
and Penny's actus rea and intention of robbing the bank fulfils the requirement of mens
rea. Criminal Law Act 1977 gives us further guidance regarding the statutory conspiracy in
its section 1 (1). In this section, the law considers a person guilty if he agrees upon
following a course of conduct with another person or group of people to perform an act
which is an offence in the eyes of law.9

(b) Attempt:

According to Criminal Attempt Act 1981, the definition of attempt is as follows,

"If with intent to commit an offence to which this section applies, a person does an act which
is more than merely preparatory to the commission of the offence, he is guilty of attempting to
commit the offence."10

There is evidence in the scenario that there was the presence of mens rea in both Penny
and Pat, however, there is need to investigate the actus rea and to explore further if they
have gone sufficiently forward towards completing the offence. On the day of the crime,
Penny decided to abandon this adventure on the grounds of health issue and stayed home.
Mens rea was there, however, there is no actus rea. In this case, while deciding on the
preparatory stage, we should also take into consideration the guidance provided in the case
of R. v. Jones, 91 Cr.App.R. 351, applying R. v. Gullefer, 91 Cr.App.R. 356, where the emphasis
was put on taking the natural meaning of statutory words. Penny did not sufficiently went
far towards the completion of crime by staying home. However, Pat went one step further
and tried to rob the bank. He failed in his attempt by getting stuck in the revolving door,
however by doing this he exhibited his actus rea and also the mens rea of the crime. It could
be argued that his acts were mere preparatory based on the judgement of the case of R. v.

9
Criminal Law Act 1977, “The Offence of Conspiracy”,< https://www.legislation.gov.uk/ukpga/1977/45/section/1>
Accessed July 23, 2020
10
Criminal Attempts Act 1981 section 1 (1)
Geddes [1996] Crim.L.R. 894, however, it should be taken into account that the accused in R
v Geddes did not make any contact or confronted any pupil. In our scenario, pat made
contact with the bank but got stuck in the revolving door which is part of the banks'
property. If the basis of quashing the conviction in Geddes was the failure to have contact
with the intended party, then this condition was fulfilled in Pat's case when he entered the
banks' private property as the intended party here is the bank.

Consequences

It is quite clear from the above evidence that Pat and Penny will find themselves convicted
of committing conspiracy if the case goes to trial. To figure out what they might face in
terms of penalty, it would be helpful to consult the case law and sentencing guidelines. The
Court of Appeal in the case of Cooke [2017] EWCA Crim 1272 gave us guidance in this
matter by advising not to adopt the approach of one size fits all, rather take into account
their degree of participation and the roles they were assigned.11

Criminal Law Act in section 3 deals with the penalties of committing conspiracy. As a
general rule, the punishment of imprisonment for conspiracy should not exceed the term
for the relevant crime, and in a case where the relevant crime is not punishable by
imprisonment a fine should be instated.12

The consequences for Pat and Penny could be very serious since they were conspiring to
rob a bank which is a very serious offence. The scenario does not provide their intention in
regards to how would they behave or planned to behave in response to any resistance
posed by any member of bank staff or its customers, in the event of the arrival of security
forces while they are in the middle of their act, and any change in circumstances. They can
potentially face penalties related to the robbery. The Theft Act 1968 in its section 8 states,

“A person guilty of robbery, or of an assault with intent to rob, shall on conviction on

indictment be liable to imprisonment for life.”13

11
Cooke  [2017] EWCA Crim 1272
12
Criminal Law Act 1977 section 3 (1)(b)
13
Theft Act 1968 section 8(2)