There are different kinds of so-called defences of criminal liability.

Some are just so called denials of the actus reus.

- E.g. D saying V consented to rape. Merely a denial of actus reus and nothing is added to the
defence by the use of that term.
- Another common one, if D pleas an alibi.

Second type of so-called defence is a denial of mens rea. Again, it doesn’t add anything except being a
so-called label.

- Saying something is an accident.

Finally in types of so-called defences, there are things that can be seen as defences proper; these can be
broken down into 2 broad categories

- Justifications
o E.g. SD leading to murder. He admits actus reus and mens rea, but is arguing that he was
justified in killing.
- Excuses (can be full or partial
o Loss of control. There D is saying he killed victim and has mens rea, but lost control. And
there, the law provides a partial excuse.

We are dealing first with the so-called mental condition defences.

We deal in these lectures with three doctrines of the criminal law relating to the mental states known as
insanity, automatism and intoxication. If D’s acts are done while he is in one of these mental states he
may be relieved of criminal liability. For this reason they are often called defences, but in doctrinal terms
they usually operate as a denial of the mens rea for whichever crime has been charged against the
defendant. In this sense they are no different functionally from any other claim that D lacked the
relevant intention, knowledge or foresight required for the offence in question. However, they have
always been regarded as raising policy issues, such as the protection of society from dangerously
mentally disordered persons, and it is the need to reconcile competing claims of principle and policy
which has led to the development of distinct bodies of doctrine.

This point needs some expansion. Intoxication, insanity and automatism usually have any effect only
where the doctrines can be used, on the facts of the individual case, to suggest that the defendant
lacked mens rea. Let us return to the concept of mens rea itself. We know that all serious offences
require the prosecution to prove mens rea and that means that they must show either that the
defendant intended to bring about a certain consequence, or knew that he was running a risk of causing
it, etc. Now, so far we have tended to assume that if the defendant did not in fact intend or foresee the
risk of the consequence, etc, then he must lack mens rea and it would not matter why he did not intend
or foresee the risk in question. Perhaps he was just stupid, or absent minded, or young and
inexperienced – in any event, it would not matter.
But should a person be able to walk away from court by denying mens rea if his reason for lacking mens
rea was that he had got himself drunk (and thus he was more culpable than if he were merely stupid, or
momentarily absent-minded, as we can all be) or if his reason for lacking mens rea was that he was
insane (and thus possibly liable to reoffend)? Clearly there are policy issues here. For example, we can
deter wanton drunkenness in a way in which we cannot deter mere stupidity; and thus criminal liability
is arguably appropriate. The same is not true of insanity (you cannot deter someone from having a
disease of the mind) but then the need for incapacitation and perhaps enforced rehabilitation (by
medical treatment) may arise more urgently than is the case with the merely stupid. So, instead of just
saying that the drunk and the insane lack mens rea and can be discharged, special rules apply towards
these ends.

If you look at handout, if D’s act is done while he is in one of these states, he may be relieved of crim
liability. In most cases, these so-called defences are basically denials of mens rea. So when D puts up one
of these pleas, he’s basically trying to argue he didn’t have the mens rea of the crime due to the mental
condition.

In that sense, these pleas are no different from D saying something like I didn’t realise because I’m a bit
stupid, too young to realise significance, etc…

Intoxication

Concept of intoxication

- Wide variety of effects. Can reduce inhibitions, cause disordered perceptions etc…
- And if instead of alcohol you take other substances, it may well result in hallucinations etc…
- So effect is first of all to affect awareness and consequences and potentially behavioural effects
as well
- The cases haven’t defined intoxication so the closest definition from legal sources is from the LC
draft code in 1989 which simply referred to intoxication as ‘an impairment of awareness or
control caused by the effect of alcohol or drugs’

Excuse disinhibition (a Evidence admissible to negative

temporary loss of inhibition) mens rea?
Involuntary No Yes (all crimes)
Voluntary No Yes (crimes of “specific intent”)
No (crimes of “basic intent”)

The law distinguishes between 2 types of intoxication, involuntary and voluntary.

Again, we have no authoritative definition of the distinction between the two so you have to deduce it
from the cases which deal with the effects of intoxication.

Voluntary intoxication

- Occurs when someone takes a substances where the effects are generally known
 - So the effects of alcohol are generally known so if you know you are taking alcohol
- So it’s knowingly taking a substances whose intoxication properties are generally known

Involuntary intoxication

- It is thought to occur (or to be able to occur) in three situations

1. Where you don’t know you are taking the substance. E.g. if your drinks get spiked in a pub
without your knowledge, and you become intoxicated as a result.
2. Where you are taking medically prescribed drugs.
o Certain drugs which can be medically prescribed may have an impact on your awareness
of control or actions. This links up with the law on automatism because there are
problems with people suffering from diabetes who have medically prescribed insulin
which can cause impaired consciousness.
3. Where someone knowingly takes a substance but it’s not generally known to have an
intoxicating effect.

So based on the table, how do these effects transfer to a potential liability or defence?

First situation: where you accept you did it but attempt to use your intoxication due to disinhibition as
an excuse:

DISINHIBITION : if a drunk person knew what he was doing, and had the mens rea for the crime as
ordinarily understood, then he is straightforwardly guilty – the fact that he might not normally have
done what he did when sober (i.e., the intoxication made him disinhibited) is immaterial, and it makes
no difference if the intoxication was involuntary (i.e., not his fault - Kingston):

Indeed with voluntary intoxication, the attitude of the common law was that this aggravated the
offence. Sir Matthew Hale “This vice' (drunkenness)' doth deprive men of the use of reason, and puts
many men into a perfect, but temporary phrenzy... By the laws of England such a person shall have no
privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his
right senses.”

*Kingston [1995] 2 AC 355

Facts: A paedophile was apparently given some drugged coffee in a flat where he was visiting someone.
After being drugged, he was then put on a bed with a 15-year old boy who had also been drugged and
proceeded to indecently assault the boy and this was filmed by whoever had done the drugging.

The question for Hl was assuming the indecent assault was intentional, whether Kingston could plead as
an excuse that his coffee was drugged and he would not have committed this had he not been suffering
from the effects of the drugs.

Held: HL held that there was no authority for involuntary intoxication being an excuse and they said
they’re not in the habit of creating a new defence for this type of case.
This is taken to have settled the law on this point. So the fact that you were involuntary intoxicated and
committed a crime will only be relevant to mitigation of sentence. It will not provide you with a
substitute defence.

If evidence admissible to lack of mens rea?

MENS REA: INVOLUNTARY INTOXICATION

Kingston appears to suggest that with involuntary intoxication, you can raise this to suggest a lack of
mens rea. This appears to be true for all crimes. In other words, the law here will let the logic of mens
rea apply.

So if you’re charged with a crime involving intention or recklessness, you can try and argue that because
of the intoxication you didn’t have the intent or foresee what you needed to foresee.

It needs to be stressed that intoxication is not a defence per se. it doesn’t follow you’ll always be
acquitted of a crime involving mens rea in such situations. We’re talking about rules of evidence really.
Phrase from Kingston “a drunken intent is still an intent”.

So even if the law allows you to raise this issue, you’re not always going to succeed. Jury might accept
you were involuntarily intoxicated but still think your action was intentional. And certainly it appeared
from the film in Kingston that it was a deliberate assault.

MENS REA: VOLUNTARY INTOXICATION

The general principles are

(1) that where a person is charged with an offence of ‘specific intent’ he may rely on evidence that he
was intoxicated by the effect of alcohol and/or drugs voluntarily taken in support of a claim that he
lacked the requisite intent – but note that this is not a ‘defence’ as such: a drunken intent is still an
intent;

(2) that where a person is charged with an offence of ‘basic intent’, he may rely on evidence of
intoxication to support a claim of no mens rea only if the intoxication was involuntary; evidence of
voluntary intoxication is inadmissible for the defence, and may even be regarded as recklessness in itself

*DPP v Majewski [1977] AC 443

There, D was involved in a pub brawl. The police were called. D starts getting involved with the police
and is restrained. He kicks out wildly with his legs and in due course, is charged with s47 assault (assault
occasioning actual bodily harm) and also with assaulting a police officer in the course of his duty.

Majewski claimed he had no memory. On the day in question he had taken numerous drugs and alcohol.
The court holds that these are offences of ‘basic intent’. And that means D cannot raise evidence of his
intoxication to deny a mens rea.

Lipman [1970] 1 QB 152

Lipman was case where D and gf had taken LSD. On his account, he had descended to the centre of the
earth and was fighting snakes. When he came to, he’d found his gf dead next to him with around 8
inches of bedsheet crammed into her mouth. It would appear he was basically strangling his gf with his
hallucination. He’s charged with murder which is a crime of specific intent so the judge allows evidence
of lsd to be adduced at trial. Murder requires intent to kill or cause serious injury. If D’s account is true,
he doesn’t have that intent as he thinks he’s fighting with snakes and has no intention to harm a human
being.

The jury in fact acquitted him or murder, but convicted him of manslaughter. Question for CA was
whether the conviction for manslaughter could be upheld. Again, if you think about the logic of mens
rea and manslaughter you could argue it on unlawful act occasioning death. Clearly for an unlawful act,
you need an assault and D can argue he didn’t know he was dealing with a human being at all and he
didn’t intend any kind of unlawful touching and therefore, no assault.

CA says that manslaughter is a crime of basic intent; therefore you can’t rely on intoxication to argue
you didn’t assault anyone. Since he clearly had engaged in an assault, CA upheld the conviction for
manslaughter.'

This is typically the way a plea of voluntary intoxication works. What it does in practice is typicall

y reduce the grade of the offence for which you are convicted.

The same would be true with offence against the person. E.g. s18 is a specific intent. So if charged with
wounding with intent to do GBH. You may be able to argue you didn’t intend to do GBH in which case
the s18 charge will fail but you can be convicted of s20 or s47 as those are regarded as basic intent
offences.

Simester, “Intoxication is Never a Defence” [2009] Crim LR 3

Unfortunately, there is a lack of clarity in the distinction between a “specific” and a “basic” intent
offence; this is not altogether surprising because the distinction is policy-driven and does not exist for
any other purpose. The best explanation is that ‘specific intent’ offences are those which can only be
committed intentionally and not recklessly (or which are charged as having been committed
intentionally):

There have been some other attempts to find an organising principle though:

First one is one suggested by Lord Simon in Majewski

His suggestion was that crimes of specific intent involved an element of what he called ‘purpose’. He
seems to have taken purpose to mean crimes where the definition of the crime requires D to act with a
certain purpose. That purpose being to achieve something which goes beyond the relevant act.
e.g. wounding with intent to do gbh. The argument is that the definition of the crime requires you to
wound someone, with the intention to achieve something else. Namely, GBH. So that, on Lord Simon’s
approach would be a crime of specific intent.

If you think about theft, appropriating someone else’s property is the act, intending to permanently
deprive them of the property goes beyond the act and therefore on this approach, is a crime of specific
intent. (and indeed, the cases support this view)

This wouldn’t work for murder however. Act is killing. The mens rea requires intent but it doesn’t
require you to have a purpose or intent to do anything else besides killing. And yet, all the authority is
clear that murder is a crime of specific intent, going back to cases all the way to the early 20 th century.
So Lord Simon’s test doesn’t count for the classification of murder as a crime of specific intent.

A second test is one based on a distinction between intention and recklessness

This is something referred to in Majewski. And followed up in some judgments in HL in *Caldwell [1982]
AC 341. (A very controversial case because of its definition of recklessness in the context of criminal
damage. Basically produced an objective test of recklessness in this context which was overruled in R v
G.)

But Caldwell did involve an intoxication issue and the majority judgments in that case suggested that in
relation to voluntary intoxication, a distinction could be drawn in terms of whether the offence could be
committed recklessly. The suggested made by Lord Diplock was that basic intent offences are those
offences which can be committed recklessly and specific intent therefore on this approach relates to
offences which can only be committed intentionally.

On this approach, murder can fit into the definition. (See Hl in Maloney, it is not possible to have
reckless murder)

MS on the other hand, the unlawful and dangerous version of it, if the unlawful act is assault, assault can
be committed recklessly therefore, assault is a crime of basic intent.

Similarly, the s20 offence of malicious wounding or infliction of GBH can be satisfied by recklessness and
thus is a crime of basic intent. The same goes for s47.

So it looks like this works well in homicide and offences against the person.

Water gets muddy here because of the way this test is sometimes justified. For example, in Majewski,
Lord Elwyn-Jones, the then Lord Chancellor said

“if a man of his own volition takes a substance which causes him to cast off the restraints of reason and
conscience, no wrong is done to him by holding him answerable criminally for any injury he may do
while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in
my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent.
It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in
assault cases. The drunkenness is itself an integral part of the crime, the other party being the evidence
of the unlawful use of force against the victim. Together they add up to criminal recklessness”

So he’s saying we’re dealing with crimes of assault. Assault can be committed recklessly. If you voluntary
intoxicate yourself, that’s a reckless course of conduct and that supplies the recklessness needed for
assault. So he seems to equate the mens rea require ford for assault with recklessness in getting
intoxicated. Does this make sense?

e.g. mens rea for assault requires you intend to use unlawful force on someone or reckless whether you
do so. Recklessness required is that you foresee the risk of using unlawful contact and go on to take it.
But you have to foresee the risk of unlawful contact. When you get voluntarily intoxicated, while you
might foresee losing some awareness, it’s not the same as foreseeing the risk of unlawful contact or
using unlawful force on someone.

So it doesn’t seem to work as they are two different kinds of recklessness. This does seem to be a
weakness of the recklessness test in that it’s built on a justification which doesn’t seem very convincing.

The other problem with it is the CA decision in

Heard [2007] EWCA Criminal 125

There, D got extremely drunk and started making a nuisance of himself. The police were called and tried
to restrain him. During the encounter with the police and defendant. The report states he took his penis
out of his trousers and rubbed it on the leg of the police officer. Heard was charged with sexual assault
under s3 of the sexual offences act 2003.

The definition of the act does require there to be a touching which is sexual but importantly, the
touching has to be intentional and the word intentional is used in the statutory definition. So it appears
that this is not an offence which can be committed recklessly. The question then is whether heard can
plead he was so intoxicated that this touching was not an intentional one? (Good eg of a case where
even if law had allowed him to adduce evidence, no one could doubt it was an intentional touching.
Clear eg of a drunken intent is still an intent)

The question however was merely the court would allow evidence of voluntary intoxication to be
considered by the jury with regards to whether the touching was intentional. Applying the recklessness
test, the answer ought to be yes as sexual offence is not a crime which can be committed recklessly. CA
however held that sexual assault under s3 of the 2003 sexual offences act is an offence of basic intent.

On that basis, it appears the test based on recklessness is not a complete account of the distinction
between specific and basic intent however, it does appear to work for the great majority of offences.

It’s not altogether clear from the judgment in heard quite how the CA itself conceived of the distinction
between basic and specific intent. It might well be we have to come back and say the whole thing is
policy driven and you have to look at each specific crime to see which category it falls into.
It is possible that what the CA had in mind in Heard was a distinction between acts and their
consequences. Sexual offences are defined as a conduct crimes. I.e. they entail certain physical acts in
certain circumstances with intention.

But it’s not a result crime in that no harmful result is required. So in that sense, sexual assault differs
from murder, manslaughter, or offences against the person, as all of those require certain
consequences.

Dennis’s tentative suggestion is that it may be that following Heard courts have in mind that specific
intent crimes require results to have been caused intentionally like death, serious injury, gbh, or they
require some kind of further intent like you get in theft. (Appropriating with intent to do something else
further on) but till we have a further case on this, this point will remain unclear.

Ultimately, safest option is to look at precedent.

ON “SELF-INDUCED ” INTOXICATION FROM DRUGS TAKEN FOR THERAPEUTIC REASONS , SEE

Hardie [1984] 3 AER 848

D got very upset following a row with his gf and helped himself to some vallium which had been
prescribed for her and it appears the valium had some kind of unusual effect. It’s not entirely clear what
physiological effects did result but certainly he faced some disordered perceptions and the unawareness
of the significance of his acts.

But what he did was to set fire to the wardrobe in the flat in which he resided and he was charged with
arson. Arson is an offence which can be committed intentionally or recklessly under the criminal damage
act.

It seems to have been assumed that this was a case of involuntary intoxication (court doesn’t really go
into this point. Example of the third type of case – where someone knowingly takes a substance not
generally known to have an intoxicating effect)

He’s being charged with an offence which involves recklessness as to the possibility of endangering life
with the fire he’s created.

If this was voluntary intoxication, it’d be clear the jury could not recognise it. Essentially, the principle is
that a drug that was taken voluntarily will result in an involuntary intoxication if it is of a non-dangerous
nature and not known to cause unpredictable or dangerous behaviour, provided the defendant was not
reckless in taking the drug.

Bailey [1983] 2 AER 503

Here, a failure to eat after taking insulin despite awareness that this could lead to uncontrolled
behaviour amounted to self-induced automatism. (So was essentially ‘voluntary intoxication’ bar that it
was automatism)
INTOXICATION AND MISTAKE

Mistake as to the element of a crime

You might be mistaken as to circumstances, in which case, the specific/basic intent distinction appears
to apply so that if recklessness were to be enough for the mens rea of the circumstances, then the
voluntary intoxication won’t help.

*Fotheringham (1989) 88 Cr App R 206

Rather strange case. D came home very drunk from an evening out. He and his wife had employed a 14-
year old babysitter who’d basically got fed up waiting for them come home and decided to sleep in the
marital bed. D got into bed and proceeded to have intercourse with the girl believing her (he claimed) to
be his wife and is charged with rape. He claims that because of his drunkenness and believing the girl to
be his wife, he believed her to be consenting.

CA said rape is an offence which can be committed with recklessness as to consent and therefore, D’s
voluntary intoxication could not be relied on. So rape on the Fotheringham view is a crime of basic
intent. Can be committed recklessly and D’s drunken mistake couldn’t be relied on to argue he didn’t
have the mens rea.

Mistake as to an element of a defence.

Suppose you’re very drunk, you’ve been out with someone else who’s drunk, you have an argument and
think the other person is going to attack you so you use force in imagined SD but, your belief is wrong
and the other person is not about to attack you so your use of force is wrong on objective facts, can you
use your intoxication to argue that your use of reasonable force in self-defence should be considered by
jury.

Law has taken a strict line here. You can’t rely on drunken mistakes to argue you believed you were
justified in using force and this appears to be true whether or not the crime that you’re charged with is
one of specific intent.

e.g. if you use lethal force in the belief it was necessary to do so, in this imagined SD, and you’re charged
with murder; murder being a crime of specific intent, but on the authorities you can’t rely on a mistaken
belief in SD to justify your action.

Stated by CA in O’Grady [1987] and confirmed by CA in *Hatton [2005]

Commentators are critical of these cases as they say they’re anomalous. If we allow it on issues of mens
rea in murder. Shouldn’t we at least allow it to be considered on a murder charge if not basic intent
crime?

But nonetheless, law is clear and courts say its justified on policy. People shldnt be allowed to rely on
drunken mistakes to use lethal force.
Insanity

First, we should distinguish insanity from unfitness to plead. Unfitness to plead goes to the question
whether the defendant may properly be tried for the offence, and the court is concerned with his
mental state at the time of his trial. He might well have been sane and responsible at the time of his
crime, so this is not a substantive plea. The test of fitness to plead is basically one of understanding and
competence: D should be able to understand the charge, understand the difference between a plea of
guilty and not guilty, instruct his lawyers, challenge jurors, follow the evidence and the course of the
trial, and give evidence if he wishes. Needless to say, the fact that he might not be fit to plead does not
mean that he is free to go either: if the jury is satisfied that he did the act which he is charged with, then
he is still to be detained – but this is pursuant to a special power, because he has not been convicted of
any crime: see Criminal Procedure (Insanity) Act 1964, ss. 4, 4A and 5

By contrast, the substantive common law defence of insanity arises when, at the time of his act, the
defendant was

“labouring under such a defect of reason, from disease of the mind, that when he did the act [or made
the omission charged], he did not know the nature and quality of what he was doing [or failed to do]; or
if he did know it, that he did not know that it was wrong”: M`Naghten`s Case (1843) 8 ER 718

So, just as intoxication is a form of denial that the accused lacked mens rea because of self-induced
intoxication, insanity is a form of denial that the accused lacked mens rea because of a defect of reason,
caused by a disease of the mind which in turn meant that he did not know the nature and quality of
what he was doing or that it was wrong. If the defence succeeds, then the accused is not guilty of the
crime charged but he may still compulsorily be detained for treatment. In such cases, the jury returns a
“special verdict”: not guilty by reason of insanity. Note that the burden of proof is, exceptionally, on the
defendant, who must prove the defence on the balance of probabilities.

The thought here is that you can’t fairly blame someone who is insane and you can’t deter someone
from having a mental illness so retribution and deterrence simply don’t seem to have any role in the
case of someone who is insane.

With regards to the test of insanity in common law, it goes back to 1843 and is known as the M’Naghten
rules which arose out of a case involving Daniel M’naghten (M’Naghten’s Case)

M’naghten was an Irishman who was charged with murdering a man called Drummond, the secretary to
the PM at the time, Sir Robert Peel. At trial, evidence was given that for some years, M’Naghten had
suffered from delusions of persecution by Tories, members of the political party of which sir Robert peel
was the leader.

He seems to have decided that the only way he could get rid of this persecution was to kill peel but he
shot and killed Drummond by mistake. This case created a lot of public interest at the time. There was
considerable medical evidence that M’Naghten was insane.
What happened at trial is that the trial judge told jury they could acquit the defendant if they thought he
was unable to distinguish right from wrong. On that direction, the jury returned a verdict of not guilty.

This caused a political storm. It was such that the HL in its political capacity did something unusual and
indeed unprecedented. They asked all the common law judges to clarify the law. So they asked common
law judges certain questions on what the law was on insanity.

The answers the judges came up with have become known as the M’Naghten rules. These rules have a
unique status in English law. They are not a judgment and technically, have nothing to do with
M’naghten’s case at all. They were hypothetical questions the judges were asked and responses of the
judges.

So in a sense, they’re a restatement of the common law in 1843, but do not constitute any kind of
judgment. Having said that, they have been treated as authoritative ever since and in Sullivan [1984], HL
said the rules did state the law of England on insanity defence.

The key passage is the one set out in above and there are clearly a number of elements:

D has to be suffering from either

- Defect of reason
- Disease of the mind

So as not to know

- the nature and quality of the act or

- that the act was ‘wrong’

In relation to the burden of proof of the insanity defence, the rules started off by saying that everyone is
presumed to be sane and responsible for their actions, until the contrary is proved. Thus, the burden of
proof is on defence. That makes in modern law, insanity anomalous as with the other CL defences to
crime, D only has to adduce sufficient evidence to raise the issue before the full burden shifts to the
prosecution.

E.g. self-defence if you raise it, prosecution has burden of disproving it. But with insanity, burden
remains on D to prove defence and standard of proof is bop.

DEFECT OF REASON

Indicates a loss of the power or faculty of reasoning. Thus it doesn’t include a temporary failure to use
one’s power of reasoning

Clarke [1972] 1 AER 219

D charged with stealing food from a supermarket. She argued as a defence that she had no mens rea:
that she had put the items in her bag not really knowing what she was doing but was rather
absentminded. To support this defence, she called medical evidence to the effect that her
absentmindedness could be attributed to the combination of depression and the effects of diabetes.

The trial judge, once he heard this evidence, made a legal ruling that D was putting forth a defence of
insanity for a charge of shoplifting. D changes her plea to guilty so that she could be convicted at trial
and then take the case to the CA to challenge the trial judge’s ruling.

In the CA. it was held that the trial judge was wrong, that the M’Naughten rules were referring to with
defect of reasoning the loss of power/faculty of reasoning and not a temporary failure to exercise the
power that one had.

Thus someone suffering from confusion or absentmindedness isn’t legally insane.

It was left to the jury to decide the question of intent to steal- jury would probably have given her the
benefit of the doubt.

D ISEASE OF THE MIND

There has to be a causal relationship with the first 2 elements. I.e. the defect of reason has to arise from
the disease of the mind. If it arises from something else then this doesn’t fulfil the insanity defence. Thus
you might have someone suffering from a very severe mental disability. If this is a natural disability, then
this will be a defect of reason but not one that arises from a disease of the mind. Someone like this, if
charged at all (they may be unfit to plead) may claim no mens rea in the ordinary way.

This section is problematic, because the concept is a legal one. Disease of the mind and insanity are not
terms still in psychiatric use- they are concepts used for the purpose of classifying the legal defence that
D is raising.

At this point, bear in mind the link between insanity and the defence of automatism. An automatism
plea is that D’s action was involuntary because it was an act done by the body without the conscious
control of the mind: so e.g. someone suffering from a concussion whose actions are automatic: not
consciously a product of the defendant’s will. If D successfully raises automatism, there is a complete
acquittal (unlike the qualified special verdict for insanity). However, when D has to give a reason why
he/she was in an automatic state- and if that reason means that D can be dangerous, then courts will
start worrying about social protection and start thinking of if the defence ought to be one of insanity
instead (where they can enforce the special verdict)

Thus the divide between insanity and automatism is signalled by the notion of ‘disease of the mind’;
indeed, this is the chief use of this criteria- to separate the 2 defences, each with different results.

What is a disease of the mind is a question of law:

Kemp [1957] 1 QB 399- ‘mind’

LJ Devilin: ‘mind’ refers to the ordinary sense of the word- namely the mental faculties of reason,
memory and understanding
*Sullivan [1983] 2 All ER 673- cause of impairment
(D caused GBH during an epileptic fit)

Lord Diplock approved Devilin LJ’s words.

HL confirmed that in their view, it didn’t matter whether the cause of impairment of the mental facilities
was organic or functional, or permanent or transient

*Bratt y v A/G for NI [1963] AC 386

Lord Denning: ‘the major mental illnesses which the doctors call ‘psychosis’ are clearly diseases of the
mind. It seems that any mental disorder which has manifested itself in violence and is prone to recur is a
disease of the mind. At any rate it is the sort of disease where D should be classified in hospital rather
than prison’

This dictum ties the insanity defence to its function (to trigger the special verdict and the court’s powers
of social protection). It holds that any major mental illness that a psychiatrist would classify as psychosis
that causes a defect of reason can give rise to the insanity defence

However, in practice this dictum is too wide and brings too many people into the net of insanity- giving
rise to the internal/external factor test

*Quick [1973] QB 910

D was a male nurse in a psychiatric hospital and was charged under s47 of the 1861 Act of assaulting a
patient and causing him actual bodily harm. There was clear evidence that D had carried out a physical
attack on the patient.

His defence was based around the fact that he was diabetic and had been prescribed insulin which he
had taken as directed on the relevant morning: but that he then failed to have any food and had also
had some alcohol. This isn’t good for insulin as what tends to happen is that one then suffers from
hypoglycaemia: a condition of low blood sugar which causes unconscious behaviour where one can be
violent in actions without having a lot of control of them.

On that evidence, the trial judge ruled that the defence put forth was one of insanity. On the facts, it
seems understandable: a medical condition (diabetes) affected the working of his mind (lost his
reasoning albeit temporarily). He had engaged in a violent act that could clearly reoccur. Thus on
Dennings dictum qualifies for the insanity defence and special verdict.

The CA felt that this was nonsense: this condition could very easily be rectified by giving him some
glucose. The CA felt that to lock up a diabetic in a special hospital would be absurd and an affront to
common sense.

Rather, they refined the test of a disease of the mind. They ruled that there was a distinction between
internal and external factors. For a disease of the mind, there must be a malfunctioning of the mind
caused by some internal disease. Where there is malfunctioning caused by some external factor, then
that is automatism.
Here, the application of insulin was application of an external factor. Thus the conviction was quashed.
(Quick had at trial changed his verdict to guilty and challenged in the CA. They agreed with trial judge
that this wasn’t insanity but rather automatism).

**What about his recklessness in not eating food after insulin? The court didn’t overlook it: rather, the
problem was that in 1973 the court had no power to order the retrial. These days Quick will almost
certainly be retried raising the question of recklessness.

Application of the internal/external factor test

Kemp [1957] 1 QB 399

Kemp: Case of a man normally a devoted husband who attacked his wife without warning and caused
her a serious injury. Medical evidence showed that he was experiencing arteiro-schlerosis which may
cut off blood flow to the brain. D might suffer at temporary seizure where he would not be sure he
knew what he was doing. On the internal/external factor test, this is an internal disease which produces
a loss of the power of reasoning and it is thus a disease of the mind.

This highlights how the test may thus give rise to a very artificial notion of insanity. If someone is
suffering a hardening of arteries, is that person insane?

* Sullivan [1983] 2 All ER 673

epilepsy = on-going condition that causes seizures. People suffering from epilepsy can assault someone
in the seizure. On the internal/external factor test epilepsy is an internal disorder producing a temporary
loss of reasoning. Thus Sullivan was legally insane and was thus another example where defence of no
mens rea is changed to defence of insanity.

Hennessey [1989] 2 All ER 9- hyperglacaemia

Hennessey also a diabetic, who failed to take his insulin and got HYPERglycaemia. This also has effects
on one’s actions and he is alleged to having committed an assault in these conditions. This time (contrast
Quick) the insanity ruling is upheld. Diabetes are an internal cause – disease of the mind and classified as
insanity

*How can one diabetic be legally insane and another not, on the difference that in one case he took
insulin (thus an external factor) and here he didn’t (making diabetes an internal factor)? This is clearly
unsatisfactory- there is no case to make Hennessey insane

* Burgess [1991] 2 All ER 769

Sleepwalking: Here D allegedly attacked a neighbour by hitting her on the head with a video recorder.
He claimed he had done this after falling asleep and had no recollection of doing it no any reason to do
it.
Pre-burgess, sleepwalking was given as an illustration of a case of automatism, clearly the mind isn’t in
control of the body but in Burgess’s case, it was different because Burgess called medical evidence to
the effect that the sleepwalking had an underlying pathological cause but was medically untreatable.

Once that evidence was given, the court held that it was evidence of an internal factor (if there was
some evidence of an internal factor, it was given). Burgess’s case was held to be insanity: argument that
what happened to Burgess had caused him to be violent and if it seemed to be an underlying idea in the
judgment that the court felt that he needed the treatment.

Thus here a case that was automatism became reclassified as insanity. Demonstrates how the social
protection role of insanity comes in.

Rabey (1980) 114 DLR (3d) 193 (Sup Ct of Canada)

SO AS NOT TO KNOW THE NATURE AND QUALITY OF THE ACT

Codere (1916) 12 Cr App R 21

CA held that ‘nature and quality’ refers to the physical quality of the act- if the insanity defence is going
to work, D has to be unaware of the physical nature of the act that he is doing.

This means that the insanity defence is going to be very narrow: the requirement here is only going to
catch two kinds of people:
a) those who are actually unconscious at the time of the act e.g. Sullivan, Kemp and Hennessey-
people suffering from an organic condition that causes an episode of unconsciousness when
they commit a violent act of which they are unaware. D like these would want to plead
automatism rather than mental conditions  clash of the two conditions

or b) those suffering from very bizarre delusions. There are no cases to illustrate this. Textbooks:
imaginine the case of a person who cut off the head of another while he was sleeping because it
would be great fun to see him looking for it when he woke up- this is thus clearly and entirely
hypothetical.

In practise, this consequence of defect of reasoning really only captures people who are unconscious, ie
people under a)

OR THAT THE ACT WAS ‘WRONG’

‘Wrong’ is defined narrowly to mean legally wrong

Windle [1952] 2 QB 826

D married to a mentally ill woman who made his life hell  after a while D was diagnosed with a
communicative form of mental illness. The psychiatric textbooks of the time defined this condition as
folie a deux: where 2 people are living intimately and one is ill, and it transfers to the partner. D
appeared to have cracked, and given his wife a fatal dose of aspirin.
Charged with murder- when arrested, told the officer: ‘I suppose they will hang me for this’

LJ Devlin: With those words, D signed his own death warrant. He had a defect of reason from disease of
the mind, but clearly knew what he was doing and he knew that it was wrong. Thus though he was
arguably insane, neither of the consequences of the insanity definition were satisfied.

The ruling that wrong = legally wrong was upheld recently

*Johnson [2007] EWCA Crim 1978

CA expressed sympathy with the notion that wrong should have a wider meaning- so if D was unaware
of the moral significance then that ought to qualify. But CA felt it was too late to enlarge the defence
from what had been said in Windle – and so upheld the notion that wrong = legally wrong.

Conclusions
Thus the insanity defence is really very narrow: only covers people unaware of the physical nature of
their acts or aren't aware that it’s legally wrong: applying literally, mean that one can’t really rely on it.
e.g. psychopaths are not legally insane: even if one assumes that psychopathic disorder is a disease of
the mind, they normally know what they are doing, and that it is legally wrong (why they cover their
tracks). Thus in the past, psychopaths who may turn into serial killers are not legally insane: the issue is
rather if they can plead diminished responsibility on a murder charge.

- Sutcliffe (Yorkshire Ripper case). Murdered 13 prostitutes in Yorkshire. Was undoubtedly a

paranoid schizophrenic- believed he had a divine mission to kill prostitutes. But he knew what
he was doing and knew it was wrong- so was not legally insane. At trial, there was impressive
medical evidence that he qualified for diminished responsibility and was prepared to plead
manslaughter. Prosecution was ready to accept it, but trial judge refused to accept it- he felt
that for public interest, there should be a full trial. At trial, the jury convicted him of murder,
disregarding the diminished responsibility evidence which the prosecution was happy to accept.
But practically same result was gotten regardless of manslaughter or murder as shortly after
being incarcerated, he was transferred to Broadmoor hospital.

The judge’s power of disposal after the return of a special verdict :

If the defence is successful, then the jury return a ‘special verdict’: not guilty by reason of insanity. The
authority for this is the Trial of Lunatics Act 1883 s2. Under this verdict, D is acquitted of the crime but
the addition of ‘by reason of insanity’ qualifies his acquittal. The court then has certain powers of
disposal of the defendant. It isn’t a complete acquittal in the sense that there are no further legal
proceedings.

Up till 1991- if an insanity verdict was brought it, the court had to undertake a mandatory commitment
of the defendant to a special hospital from which release was only possible through a discretionary
power from the Home Sec. This was one of the reasons why the defence was very rarely used: a lot of D
who might have qualified for it preferred to plead guilty, take a conviction and go for the determinate
sentence- because at least they know that they will get out. Further, for some defendants, being
labelled insane might be thought stigmatic- and so might not have wanted to accept the label.
Criminal Procedure (Insanity and Unfitness to Plead Act) 1991 amended the Criminal Procedure
(Insanity) Act 1964 so that the judge is no longer obliged to commit the insane accused to a secure
hospital, but may choose between a hospital order (with or without restriction), a guardianship order, a
supervision and treatment order (order telling D to get treatment as an outpatient), or an absolute
discharge (ct feels D not dangerous, blameless and no treatment necessary- for all practical purposes
this is the equivalent of a complete acquittal). If the court thinks the act committed was very serious and
D dangerous, then the hospital order with restriction will be appropriate- just that it is now an option
rather than compulsory..

Research on the use of the insanity defence suggests that it is not very popular. But it is central to
criminal law theory because it is around this defence that other defences are then brought. E.g. law of
automatism goes side by side with this defence as well.

The insanity defence and Article 5 of the ECHR * (right to liberty).

A5 ECHR gives a right to liberty and security of the person, but the state can take it away on a number of
grounds if authorised by law. One of the grounds for deprivation of liberty is if you are subject to a
criminal conviction and the punishment is imprisonment. But with the insanity defence, D is not
convicted, the verdict is an acquittal. So the state can’t justify locking up someone on the basis that they
have been acquitted.

But one of the other conditions is A5(1)(e) where a person can be deprived of liberty if they are a
‘person of unsound mind’ and that it is necessary to deprive them of liberty to protect themselves or
others.

Winterwerp v Netherlands (1979) 2 EHRR 387

ECHR held that in order to justify depriving someone of liberty on the basis that they are of unsound
mind, there has to be objective medical evidence of unsoundness of mind, and the mental disorder must
be of a kind that warrants compulsory detention

But a problem: insanity defence only basically applies where it’s caused by organic issues- diabetes and
sclerosis. These aren’t unsound mind and they don’t justify locking them up. Thus there is confusion
over how far the insanity defence is compatible with A5. This issue hasn’t been tested- a reflection of
the fact that the defence is rarely used. But if and when it happens, English law might find itself in
difficulty.

Sutherland and Gearty, “Insanity and the European Court of Human Rights” [1992] Crim LR 418

Automatism

Thirdly, where the defendant lacked consciousness of his actions, but was not voluntarily intoxicated,
nor insane, then he is legitimately denying mens rea by reason of the doctrine of automatism. Note,
however, that because a ‘defence’ of automatism is also a denial that D’s act was voluntary, in the sense
of a conscious product of D’s will, it can be a defence to crimes that do not require mens rea, such as
some driving offences. In such cases of sane automatism the jury’s verdict is simply “not guilty”, because
there is no reason for anyone to want to detain the defendant (and the judge has no power to order it).
In principle, this is because, if the defendant did not have a disease of the mind which caused the
unconsciousness, the cause of the unconsciousness was probably some accident or mishap and there
should be no risk of repetition of whatever he did whilst his consciousness had been affected.

*Bratty v A/G for NI [1963] AC 386

Here, automatism is defined as an act done by the muscles without any control of the mind... or an act
done by a person who is not conscious of what he is doing (e.g. concussion)

- E.g. Acts done due to a concussion for instance can be automatism. This fits with the
internal/external factor distinction.
- E.g. Acts one does when suffering from an automatic reflect response. For example, if your car is
invaded by a swarm of bees while you’re driving and in fighting them off, you lose control of the
car. This could probably justify an automatism claim.
- E.g. a severe physical attack or a psychiatric episode giving rise to disassociation. PTSD is a good
example of this.

R v T [1990] Crim LR 271

D charged with robbery. Evidence was that she’d been raped 3 days prior to the incident which had
caused her a severe psychiatric injury. This might have caused her to enter a state of disassociation
where she wouldn't be properly aware of what she was doing.

On these facts, she was allowed to plead automatism

Hardie [1984] 3 All ER 848 (above) (guy who took valium and burned his wardrobe)

*A/G’s Reference (No 2 of 1992) [1994] QB 91

Self-induced Automatism

But where the defendant was at fault in allowing his consciousness to be affected, then he may be guilty
as charged, depending on the mental element in question. This doctrine is sometimes referred to as the
doctrine of ‘prior fault’.

*Quick [1973] QB 910

Automatism induced by D in that he didn’t take food after insulin. Here, the court held that if Quick had
been tried properly (trial judge just assumed he was pleading insanity), then the issue of his reckless
conduct would have to be investigated.

Kay v Butterworth (1945) 173 LT 191

*Bailey[1983] 2 All ER 503

D was charged with malicious wounding under s20 of the OAPA 1861. Like Quick, Bailey was a diabetic
taking insulin who failed to consume sufficient food after taking the medication. He became
hypoglycaemic and entered into a diabetic coma during which the incident occurred. The trial judge
should have directed the jury to consider whether he’d been reckless in not eating enough after taking
his insulin.

S20 is an offence that can be committed intentionally OR recklessly. Clearly, Quick and Bailey weren’t
reckless at the time of their act- were in a coma at that stage and clearly didn’t foresee that they might
be assaulting or wounding someone. However, the courts say that one must look at the period before D
lost consciousness and after he took insulin and ask: is he reckless at that point? This was a subjective
test- what recklessness at that stage is something that the jury will have to decide: whether D knew that
if he didn’t take food as he recommended, that he might become aggressive and uncontrolled in his
behaviour. This would depend on many subjective factors- did D know the risks, had this sort of
hypoglycaemia happened before, had doctors told him, etc.

This is also clear in driving offences: if one feels drowsy, causes an accident, and then claims automatism
as one was asleep, then the offence is continuing to drive knowing that one might fall asleep at the
wheel. Continuing to drive is negligent.

LECTURE 16: DEFENCES OF DURESS AND NECESSITY

A separate group of defences is concerned with cases where D commits the actus reus of an offence with
the requisite mens rea, but claims that he should be excused (or possibly that he was justified) in doing
what he did because he was in effect compelled to do it; the compulsion may arise from coercive human
threats or from circumstances and dangers that leave D with no other reasonable choice. The scope and
limits of these defences have presented the courts with numerous problems, and there is still controversy
over how far ‘necessity’ is a general defence at all.

Theoretical classifications of defences:

Defences of Justifications- defences where D claims that what he did was not wrong: that his actions was
in some sense encouraged by the law, or at least permitted.

- E.g. lawful arrest of a suspected offender. This is an action which prima facie amounts to a crime
possibly of assault, certainly of false imprisonment, unless duress is lawful. Under s3 of the CLA,
one can use criminal force to effect a lawful arrest, and all theorists agree that the actions of the
police officer is justified. We want police officers to arrest offenders- this is approved of an
encouraged.

- E.g. self-defence: the law permits you to use force in self-defence.

Defences of Excuses: one cannot be fairly blamed and punished for their actions for which they had both
the actus reus and mens rea as they had some excuse. Normally, where one had no other reason to do
the act e.g. carrying out a robbery on the threat of death. These kind of defences look to the liability of
actions, while the defence of justifications go the wrongness of the crime itself.

The reasons for this theoretical distinction are that different consequences follow form making the
distinction.

- E.g. can you assist someone who is doing a justified act? Yes- e.g. a surgeon carrying out an
operation with consent is a justified act, but without consent is clearly not justified. The surgeon
with consent can be assisted by a team- the justification extends to all. But excuses are
personal- so an excused act cannot be assisted- e.g. robber who is assisted by another who is
NOT under duress, then that other is not able to rely on the defence of duress.

- e.g. resistance in a justified act- no: one cannot resist it e.g. one cannot resist a lawful arrest. It is
an offence to resist it. however, one can resist an excused act: e.g. victim of a robbery- can use
force to resist being robbed

Duress by threats

Certainly the most well-established of these forms of defences. Note that there are quite a few elements.
Reflects the concern of judges that duress should not become a wide defence. They fear it being broad as it
may be abused and that it may provide some kind of ‘charter for terrorists or organised gangs’

(1) Conditions of the defence

(A) NATURE OF THE THREAT: IT MUST BE TO KILL OR TO CAUSE SERIOUS INJURY (OR D MUST HAVE REASONABLY
BELIEVED IN THE EXISTENCE OF SUCH A THREAT )

Essence of the defence is that D is threatened in some way and required to commit an offence due to
the threat. It’s a form of compulsion. D is basically saying he had no choice as he was faced with this
threat and had to do as he did.

In *Hasan [2005] UKHL 22, Lord Bingham described this as an excuse. The essence of duress is that D is
asking to be excused in the circumstances as there’s no other choice available and argues that
reasonable people would have done the same thing in those circumstances.

To ground the excuse, the threat has to be one to kill or to cause serious injury. And there is a lot of
authority for this requirement. It is stated in virtually all the modern cases and Bingham confirms it in
Hasan.

Threat to damage property?

In the 18th century, it was argued that a threat to damage property ought to be enough but it has been
rejected and has never been argued since.

Threat to imprison?
A doubt was raised in a case just after WW2 over whether a threat for imprisonment would suffice for
duress. That obviously has an implication for hostage taking. (Steen [1947] CA) CA was doubtful there as
to whether threats for imprisonment ought to be sufficient for duress. The answer seems to be if you’re
making a threat against a hostage, it’s basically an implied threat to kill or cause serious injury if your
demands aren’t met. So it seems to be a disguised discussion about threats to kill or cause serious
injury.

What happens if you believe a threat to kill or cause serious injury has been made but that isn’t the
case?

*Graham [1982] 1 AER 801

CA held that provided your belief in duress is a reasonable one (held on reasonable grounds), then you
will be able to plead duress.

e.g. if someone pointed a gun at you and said beat up x or we’ll shoot you, even if the gun was unloaded
and the person didn’t really mean it, you might reasonably believe the gun was loaded.

(B) OBJECT OF THE THREAT: IT MUST BE TO [HARM ] D HIMSELF, OR A MEMBER OF HIS FAMILY, OR QUERY, ANYONE
FOR WHOM HE REASONABLY FEELS RESPONSIBILITY

It is settled that the defence can arise if the treat is made against D himself. Further, all the dicta and
academics seem to agree that if the treat is made against members of D’s family, that too will suffice.

After that however, it’s not quite clear how far duress will go. There’s some dicta in recent cases that
duress should be available where the threat is against anyone for whom D feels reasonably responsible.

e.g. if a teacher in charge or some schoolchildren was a victim of threat to harm children unless she
committed a crime, she’d feel reasonably responsible and the logic for duress will apply.

Suggestion by CA in shaler that this’ll be the situation.

*Martin [1989] 1 All ER 652

*Hasan [2005] HL (Look at judgment on duress by Bingham – his view represents the modern judicial
approach to duress and shows that it’s really quite narrow and he casts come doubt on the earlier cases
which he thinks might have been a bit generous)

(C) THE THREAT MUST BE ONE THAT WILL BE CARRIED OUT IMMEDIATELY

*Hasan (cf Abdul-Hussain [1999] Crim LR 570)

Again, an area where the law is open to a certain amount of doubt. At one stage it was thought to be
enough if the threat could be carried out imminently if not immediately.
There’s a case R v Hudson and Taylor [1971] involved two teenage girls charged with perjury. They were
witnesses at a trial of a man charged with an offence of violence. They were able to give identifying
evidence that he’d been involved.

Pre-trial, they were approached by associates of D and threatened with being cut up if they gave
evidence against him. Case of witness intimidation. So in court, sitting in the front row of the public
gallery is the man who mad the threat. So they basically give in, their evidence fails to identify D in flat
contradiction of what they told the police beforehand and it’s on that basis they’re charged with
perjury.

At their trial, they admit they lied on oath but said they’d done it in response to these threats.

Here, the threat to cut up is clearly a threat of serious injury and is directed at them. Nonetheless, it’s
not a threat which can be carried out immediately. They’re committing the offence in court, testifying
where they’re protected. So the man in the gallery can’t carry the threat out immediately.

CA in Hudson and Taylor addressed it and said while it’s through it couldn't be carried out immediately,
it ‘could be carried out in the streets of sulford the same night’. So it could be carried out in a few hours
even. So the court held on that basis that the defence of duress should have been available to the girls
and the trial judge was wrong in withholding it from the jury.

Abdul-Hussain [1999] Crim LR 570

(Remarkable case probably wouldn’t be decided like this today) Here, a group of Iraqi citizens hijacked a
plane from Sudan. It landed in Stansted, where they promptly tried to seek asylum

Story was they hijacked the plane as they faced an imminent prospect of being deported from Sudan
and sent back to Iraq and if so, would be tortured or killed. Of course this was at the time or Saddam.
This wasn’t a case of duress by threat but rather duress of circumstances. However, the elements of
these 2 forms of duress are virtually the same. So the same problem is raised of how immediate or
imminent the threat has to be.

Here, the threat certainly wasn’t immediate. They weren’t going to be deported in the next hour or two,
it was hanging over them and they’d taken pre-emptive action. It could in a broad sense be said to be an
imminent threat however, something that could happen in a short time scale.

CA held to many people’s surprise that on a charge of aircraft hijacking, they should have been able to
have had their defence of duress considered by the jury.

This was a 1999 case. It seems that post 9/11 if those facts reoccur, CA won’t take the same view and
that’s reaffirmed by some suggestions by lord Bingham in Hasan where he’s clearly doubtful over
whether Abdul was rightly decided and the same goes for Hudson and taylor. Quotes Glanville Williams
who says Hudson was an indulgent decision.

He prefers to say threat should be immediate or almost immediate.

(D) THE THREAT MUST BE A CAUSE OF D COMMITTING THE CRIME

Doesn’t have to be the sole cause however. Can be mixed with other causes provided it’s basically
operative on D’s mind.

Valderrama-Vega [1985] Crim LR 220 (and Commentary)

Here, D was involved to some degree with the import of controlled drugs. Said he did so because he had
been threatened with death by the mafia, had been under severe financial pressure, and also that he’d
been threatened with disclosure of his homosexuality. Judge directed the jury in terms that duress was
available if D acted “solely” as a result of threats to kill or cause serious injury.

CA recognised that the direction wasn’t quite accurate, and the treat merely had to be a cause to allow
the defence. (Nonetheless, the conviction was upheld)

(E) D DID NOT VOLUNTARILY EXPOSE HIMSELF TO THE RISK OF THE THREAT BEING MADE

Picks up the point made at the start that duress should not become a charter for gangleaders or
terrorists.

*Hasan

This was essentially the issue of Hasan. The problem that was being addressed was that there appeared to
be some dispute in the earlier cases as to what the test was for this voluntary exposure principle. Some
cases appeared to suggest the test was objective but some appeared to suggest that the test was
subjective. I.e. D had to actually foresee the risk that threats might have to be made against him. HL in
Hasan had to decide which approach was correct.

By a majority, HL in Hasan held that the test was objective.

- It’s certainly enough if D actually did foresee by joining a particular group of people he might be
subject to a risk of being compelled to commit crimes. However this subjective knowledge is not a
must.
- They say it’s enough if you ought to reasonably have foreseen that you might be subject to
compulsion.

When might one ought to have reasonable foreseen they might be subject to threats to commit crimes?

- If one joins a gang or a group which uses violence as part of its aims or methods, then that’s a clear
case. (note there are cases before Hasan where CA had refused duress to gang members on that
basis)
o Gang carrying out armed robberies
o Terrorists involved in dangerous activities
 - It doesn’t appear that you have to knowingly join a gang or a group. It appears to be enough that
you voluntarily associate with people in situations where you know violence is part of the way they
operate.
o This has been particularly important in the context of people associating with drug dealers.
Number of cases where people have been involved in drug deals where they owe money to
the dealer and they then claim the dealer has used threats against them requiring them to
commit crimes to pay the debts.
o In Hasan, Bingham is quite clear that that’s the type of case if you voluntarily associate with
the dealer you might reasonably have foreseen you’d be subject to threats to pay your
debts.
- What’s less clear is the situation where you join some kind of gang or get involved in some kind
of criminal activity and then the gang or people involved in leading decide to diversify, commit a
completely different sort of crime, and then use threats against D to get him to take part. (hasn’t
really arisen in this form)
o E.g. if you join a group committing benefit fraud and the leader decides to branch out
into armed robbery and threats are made to ensure D takes part in the robbery. Ought
D to have reasonably foreseen threats might be used against him to take part in that
type of crime? The answer is not clear and the cases certainly haven’t addressed it.

(F) D MUST HAVE HAD NO REASONABLE OPPORTUNITY TO AVOID THE THREAT

This links in with the immediacy point and the two really go together. If the threat is going to be carried
out immediately if you don’t comply, the chance of you having a reasonable opportunity is limited. The
more the threat is postponed in the future, the greater your chance to take reasonable opportunity.
Again, it’ll be a jury question whether there was a reasonable opportunity and whether you failed to
take advantage of it.

Hudson and Taylor

Prosecution argued that the two girls had a reasonable opportunity to avoid the threat because they
were in court, they could immediately ask the judge for police protection etc. this was part of the
argument for saying the threat couldn't be carried out immediately.

CA took the view that yes girls could get police protection in the court but they doubted whether the
protection would be effective thereafter. (Links to the threat being able to be carried out in the street
that same night) Girls might have thought police couldn't provide effective protection indefinitely.

Again that seems to be taking a more subjective generous view of the conditions of duress and it may be
that if we follow the more cautious, objective opinion of Bingham in Hasan, this will become a more
objective test.

Again, how far this test can take account of the D’s own perceptions over whether protection will be
effective (or the opportunity to avoid the threat more generally) is unclear.
(G) D’S RESPONSE TO THE THREAT MUST BE ONE WHICH MIGHT HAVE BEEN EXPECTED OF A SOBER PERSON OF
REASONABLE FIRMNESS

Introduce the person of reasonable firmness. In other words, you’re not allowed to be a wimp.

Stated by CA in *Graham (First, ask if subjectively D had good reason to fear the threat and secondly,
objectively, whether a person of ‘reasonable firmness sharing D’s characteristics’ would have responded
differently) and confirmed by them a few years later

*Bowen [1996] 2 Cr App R 157

There, CA made an analogy with the old law of provocation. The old law required that a person react
with a reasonable degree of self-control. There was a debate in the cases about what characteristics
could be taken into account in assessing this.

The same debate played out in the context of duress. The position CA arrived at in Bowen was to say the
evaluative test is one which requires a D to act in the same way as a person of reasonable firmness,
sharing the defendant’s characteristics.

So it appears on the basis of Bowen that you can take account of things like:

- Age
- Gender
- physical health or disability
- D is suffering from some kind of medical condition.

Note: the courts said that unusual timidity or other vulnerability unless it’s associated with some kind of
psychiatric condition couldn't be considered. It also follows you wouldn’t be able to take in
characteristics such as intoxication (by alcohol or drugs)

Why is this attached to duress?

The answer must be that it is relevant to the question of proportionality. Because, we have to bear in
mind what it is D is being required to do. That might require some kind of comparison with the nature of
the threat being made. So if there was a gross disproportion between the kind of threat made to D and
what D is actually being required to do, then the reasonable firmness requirement does give the jury the
opportunity to say a person of reasonable firmness would not have given way to this threat given what
they were being required to do. Dennis thinks this is the best way to try and make sense of this
requirement. But having said that, given the threat must be at least one to cause serious injury, there
doesn’t seem to be much scope for a principle of gross disproportion between the threat and what you
have to do.

So while this principle is well established by the case law, it may be that given all the other conditions it
doesn’t have much of a scope to be applied in practice. (Might apply in say a threat to break an arm
which is a serious injury but being asked to do something serious)
But we need to bear in mind exclusions from duress (scope of defence)

(2) Scope of the defence

It can be pleaded to almost any crime but with two notable exceptions

Attempted murder &

Murder/accessory to murder

- Duress on current English law is not a defence to murder. There’s quite a colourful history on
this point. If you go back to some of the classic institutional writers (Hale, Blackstone), they
address this point and specifically say the CL requires a duty of self-sacrifice. In other words if
someone is told kill or be killed, Hale and Blackstone say it’s the duty of that person to die. The
threat doesn’t excuse you from taking a life.
- In a case in 1975, where someone was alleged to have helped IRA murder someone but was not
a principal, HL majority held that someone charged with murder as an aider and abetter could
plead duress as a matter of law (Lynch v DPP)
- 2 years later in Abbott v the Queen PC held that a principal to murder could not plead duress. PC
relied on Hale and Blackstone.
- In the 1970s we had a state of law where one party to murder could plead duress but the
principal could not. It was unsatisfactory and hard to justify

*Howe [1987] AC 417

HL had to decide whether to follow Lynch or Abbott. They chose abbott and reversed lynch holding that
duress was no defence to murder for any party to murder. Whether you’re a principal or accessory, you
cannot plead duress in answer to a murder charge.

This is founded very much on the principle of sanctity to life. There’s quite a lot of high flown rhetoric in the
judgments in Howe that the court says quite firmly that here’s no excuse for the taking of innocent life. This
is where duress is distinguished from SD as there, you can kill an unlawful attacker but the law doesn’t
regard that person as innocent as by instigating the attack they’re at fault but in duress, it’s assumed the
victim of the attack is innocent and there’s no excuse.

Lord Halisham who gives the leading speech talks about the duty of heroism again founding on Hale and
Blackstone. So the law is clearly settled on this point but there’s still very much a debate about whether this
is the correct position.

- It’s all very well to talk about a duty of sacrifice where the threat is made against you personally.
Tough but perhaps intelligible at least. But if the threat is made against your child for instance, it’s
hard to talk intelligibly about a duty of self-sacrifice as it’s not you who’s going to suffer. This point
is just ignored in the judgments in Howe. So the rationale for the decision in Howe just doesn’t
seem to touch the issue where the threat is against a member of D’s family rather than D.
 - In fact, you can sharpen the point by pointing out that if the threat is made against your child, you
have a legal duty to preserve the life of your child. (As we know from the cases of omissions, if you
fail to provide for a helpless child you can be liable for homicide). So in that situation, you have a
conflict of legal duties and it makes even less sense to talk about a duty of self-sacrifice in such a
situation.
- The other point is that duress is available if you cause someone serious injury in response to a
threat of serious gravity against yourself. So it appears to be a defence to a s18 charge (causing GBH
with intent) but if the victim dies, perhaps as a result of poor medical treatment (which isn’t enough
to break the chain of causation) or just generally something beyond your control, then the defence
of duress is not available and yet, your mens rea is the same in both cases. So there appears to be a
lack of logic there.
- Nonetheless, the law is well settled. The LC in their report on homicide (Law Commission Report No
304 Part 6 ) suggested duress should be available to murder but were going to put burden of proof
on D. neither government however has shown any sign of taking up that recommendation.

Gotts [1992] 2 AC 412

- Extended howe decision to cases of attempted murder.

Necessity

‘Necessity’ as excuse: duress by threats

duress of circumstances

‘Necessity’ as justification: Self-defense

medical bases: ‘best interest’
others

This is possibly the most controversial defence and it is still unclear if there’s a general defence of
necessity.

One reason is that it sets up more ‘competitions of value’ than any other criminal law defence. What this
means is that in defences like SD or duress, what’s basically happening is that D is putting the value of
self-preservation against the offence that he or she is committing.

In SD, you’re defending against an unlawful act, preserving life and limb. In duress by threat, given the
nature of the treat, you area gain preserving life and limb by committing the crime you’re being asked to
commit. Once you broaden out and try and argue it was necessary for me to do this to avoid…. ? Might
be all sorts of things.

At that point, lots of competitions of value might occur. E.g. could people justify breaching official
secrets act on the grounds it might help prevent some overseas military activity. Or could people justify
groing cannabis plants in order to try and get cannabis for the purposes of pain relief. ( Quayle). So
necessity throws up competition of values making issues on it particularly hard to adjudicate on.
e.g. one of the issues in quayle was that if parliament produces an elaborate scheme regarding drug
production/supply/uses etc… there’s a question of whether there’s a risk of undermining it by
introducing general CL defences based on a concept of necessity.

Having said that, it’s clear once we start thinking about this idea that it’s necessary to commit a crime to
avoid something else, then necessity becomes an element (or rather we can see it’s an element) in some
established defences.

This about duress by threats, it’s strongly arguable there’s an underpinning element of necessity there
as if D has a reasonable opportunity to avoid the threat, it wasn’t necessary for D to commit the crime.

Similarly with SD, you can use reasonable force to protect yourself and you can use it to prevent crimes
as well. Generally assume, this notion of reasonable force has 2 elements to it. One is necessity. It must
be necessary to use force as if not, it’s not reasonable to do so. Secondly, proportionality. Amount of
force must be proportionate to gravity of attack you’re facing.

Historically the existence of a general defence at necessity at common law was denied:

*Dudley and Stephens (1884) 14 QBD 273

Famous 19th century case which involved a shipwreck. 4 people were cast on the open seas in an open boat
after the shipwreck. Three men and a cabin boy. After a number of days, when they’d run out of supplies,
and there was no prospect of rescue, two of the men killed the cabin boy and lived off his body for the next
4 days until they were rescued.

They were taken back to England and put on trial for murder. This is one of the great classic CL cases.
There’s a fascinating book called cannibalism and the common law by Brian Simpson. He goes into the
maritime history and the legal context of the case at the time. Shows convincingly that because shipwrecks
were common in the 19th century that what happened there was by no means unusual and there’s evidence
that there was an unwritten maritime\ custom that this in extreme situations was thought to be acceptable.
It was kind of a hazard of the sea.

Certainly noticeable that when they were brought back, they appeared to think they’d done nothing wrong.
In the 1880s however, the government was undergoing one of its fits of moral panic and there seems to
have been a decision taking that this maritime custom was unacceptable and had to be stopped. That may
well be the reason they were prosecuted; as a test case. A further interesting procedure of the book is the
procedural manipulation that went on.

Normally, in a jury trial, a jury returns what is termed a general verdict. (guilty/not guilty). It was clear that
the trial judge, possibly acting on instructions, feared that if a west country jury heard this, knowing the
custom, if given a simple opportunity to acquit, might do so. So what the trial judge did was to take a
‘special verdict’ which is one which consists of a number of factual replies by the jury to specific questions
asked by the judge. Once the judge got the juries reply, the judge then adjourned the case to London to be
heard by the court of crown cases reserve (5 judges) who then gave the legal answer to the specific factual
questions to which the jury answered. (so the court ruled on the legal answer to the factual questions)
special verdicts are not used anymore and this is one of the cases it was last used in. Simpson argues this
was done specifically as part of this test case to get this maritime argument squashed.

The jury found that if none of the four people had been killed for the others to eat, in all likelihood all four
of them would have died. In that sense, death was almost inevitable for all four of them. They said the boy
was in a weaker condition to the other men so he was likely to die first. Crucially the jury said there was no
necessity for killing him in preference to any of the others. So those were the factual findings of the jury.
The London court held that in the circumstances of this case, necessity was not a defence available to
Dudley and Stephens.

They were sentenced to death following the judgment. That sentence was subsequently commuted by the
Home Secretary of the day to six months imprisonment which rather confirms the suspicion that this was a
test case and the concern was not to punish the defendants but establish a precedent.

Criminal law theorists have been debating ever since what the ratio of the case is. There are at least 3
possibilities and it all depends on how you interpret the judgment in the light of the procedural history of it.

Broadest

- Court decided here that necessity is never a defence to any crime.

o If that ever was tenable, it does not seem to be now at all as later developments suggest
that at least some cases of necessity do provide defences.

Mid

- Necessity is no defence to homicide because, there can be no excuse for the taking of innocent life.
o This is how Dudley and stephens was treated by HL in Howe. They cited Dudley for the
proposition that there can be no excuse for the taking of innocent life and certainly the
lords seemed to assume that was the ratio of the case

Narrow Approach

- Restricts the ratio to the facts as found by the jury

o This would suggest something like necessity is no defence to murder where circumstances
have not indicated a victim.
o So you could read the ratio as saying you can’t basically select a victim in order that you
may survive.
o Going back to Howe, one of the points that worried Lord Halisham was the idea that if
Dudley was decided differently, you might get to the situation where ‘might is right’ and he
rhetorically asked the question if one could eat his way through the entire crew in order to
survive.

Southwark LBC v Williams [1971] 1 Ch 734

This was actually a civil case where Ds were trying to plead homelessness as an excuse for trespass. (case
involving squatting) This was rejected by CA saying that necessity was basically no excuse and citing CA
authorities.

Going back to Hale and Blackstone, they talk about whether necessity could be a defence to larceny. If
someone was starving, whether it could be alright to steal food (or clothing). They were quite clear the
answer should be no. this was also cited in Southwark

These cases suggest there’s no general defence of necessity in English law. However, we need to bring the
situation up to date as the situation is more complicated and messy than that. Necessity is an underlying
element to duress by threat and also by circumstances, and a second form of ‘necessity exists in some
medical cases:

Duress by circumstances

This form of duress made its appearance in the late 1980s and appeared in the context of driving offences.
The rules regarding the conditions and scope of this defence appear to be the same as for duress by threats:

*Conway [1989] QB 290

D’s in a car with a passenger. 2 men approach the car with apparently hostile intent. D believes on
reasonable ground that they are intending to attack this passenger and cause him serious injury. D
therefore drives off at speed and in a manner which could be regarded as dangerous.

CA holds that he has a defence to a charge of dangerous driving due to duress of circumstances. The court
assumed that because of the apprehended immediate risk of serious injury to his passenger, D could be
excused for trying to escape by driving the way he did. This is not the case of ‘threats’ in the sense of verbal
threats. (do x or else…) it’s more a situational or circumstantial danger.

*Martin [1989] 1 AER 652

D is charged with driving whilst disqualified. What had happened was that he’d driven his son to work but
he claimed he’d done this because his wife who was suffering from mental illness had threatened to
commit suicide if he didn’t. this is a case which shows the difficulty of maintain a distinction between the
two types of duress. It was a threat but against the ‘durresor’ rather than the ‘duressee’. Again, CA says this
is a case where D could plead duress of circumstances. (Nonetheless, they felt no jury would have
reasonably believed his story but ultimately, were forced to quash his appeal as the defence should not
have been withdrawn)

So it appears, particularly on the basis of Martin, that’ this is another form of duress. The conditions appear
to be the same as duress by threat and martin shows the difficulty in differentiating between threats and
circumstances.
In Martin and one or 2 later cases, they actually refer this to being a form of necessity defence. After all, it’s
an element of duress by threat that it must be necessary to commit the crime to avoid the threat. So it’s
bringing in necessity as an excuse.

Another way of thinking about necessity is as a justification.

Necessity is an element in the law of SD. For a force to be reasonably used it has to be necessary and
proportionate and SD is thought of as a justificatory defence.

We also now have some medical cases where necessity has been raised as an issue.

* F v West Berkshire Health Authority [1989] 2 AER 545

(Not a criminal case but raised a criminal issue) An issue arose whether doctors could sterilise a mentally
handicapped woman who was unable to consent to that sterilisation operation. The doctors wanted to
sterilise as the patient, who was resident in a particular hospital, had formed a relation with another patient
and was at risk of becoming pregnant. The medical view was that she’d be unable to cope with pregnancy
and childbirth.

Clearly a sterilisation without consent is a major invasion of someone’s bodily integrity and would clearly be
unlawful without consent and as the patient was an adult, there wasn’t provision for the law to provide
consent on her behalf.

So the question was whether there’d be any defence available to doctors if they performed the operation.
HL fell back on a doctrine of necessity. HL held the operation would be lawful because they said, it’d be
necessary in the patients best interests.

It’s clearly established that a doctor owes a patient a duty to act in his or her best interests in providing
medical treatment. There’s a kind of conflict between the risks that’d be attached to not operating and the
harm caused by not doing the operation. HL essentially said in F that it’s lawful for the doctors to ‘trade off
those considerations’ and decide what’s in the patient’s best interest overall and if it’s necessary to do it in
the patient’s best interests, it’s justified.

We’re clearly talking about justification. It’s a medical procedure it’d be incongruous to talk about excuse.

*Re A (Conjoined Twins) [2000] 4 AER 961

2 girls joined at abdomen. Medical evidence was that the ‘stronger one’ would be a ‘viable human being’ if
separated from her twin. Mary would not be as her heart and lungs were insufficiently developed to sustain
existence. Also the evidence was that the strain being put on Jody’s heart would get worse and if not
separated, both twins would die within ‘3-6 months’ but the operation would kill Mary immediately.

So the question was whether it was lawful to go ahead with the separation. From a criminal point, it’s a
killing if they go ahead. They at least have woolin intention as they know the death is a virtual certainty.
It’s on this point the CA divided. All 3 judges held the operation would be lawful but disagreed on their
reasoning. The judges clearly agonised over this. 2 of the judges basically tie their decision very much to the
facts of the case. They point out quite rightly that this is a case where the doctors owe a conflict of duties.
Because we have 2 people here, though joined, and the doctors owe duties to both to act in their best
interests. The problem here is that you can’t discharge both duties ad the best interests of the 2 of them
conflict.

So, 2 of the judges resolved this by saying that in those circumstances, the doctors have to make a
judgement of what is in the best interest overall and provided they act in a way which is proportionate, it’d
be lawful for them to do so. So the effect was to allow the doctors to prefer jodie’s best interests to marie’s
on the ground that what they’re doing is proportionate to the result they’re trying to avoid.

This is clearly not a duress case as we’re taking about something to prevent a tragedy a few months away
and again, it’s a medical case. So it’s about justification not excusing.

The third judge operates on a wider principle of necessity and goes outside the conflict of duties and it’s his
judgment which has left the law somewhat uncertain as to its future development.

Have a look at textbook/case particularly LJ brooks judgment and the kind of necessity he was implying and
think about its implications

Hasan; Lord Bingham at [21]

21 Having regard to these features of duress, I find it unsurprising that the law in this and other
jurisdictions should have been developed so as to confine the defence of duress within narrowly
defined limits. Most of these are not in issue in this appeal, but it seems to me important that the
issues the House is asked to resolve should be approached with understanding of how the
defence has developed, and to that end I shall briefly identify the most important limitations.

(1) Duress does not afford a defence to charges of murder ( R v Howe [1987] AC 417 ),
attempted murder ( R v Gotts [1992] 2 AC 412 ) and, perhaps, some forms of treason: Smith &
Hogan, Criminal Law , 10th ed (2002), p 254. The Law Commission has in the past (e g in
Criminal Law: Report on Defences of General Application (1977) (Law Com No 83; HC 556),
paras 2.44-2.46) recommended that the defence should be available as a defence to all offences,
including murder, and the logic of this argument is irresistible. But their recommendation has not
been adopted, no doubt because it is felt that in the case of the gravest crimes no threat to the
defendant, however extreme, should excuse commission of the crime. It is noteworthy that under
some other criminal codes the defence is not available to a much wider range of offences: see,
for example, section 20(1) of the Tasmanian Criminal Code 1924 (14 Geo V No 69), section
40(2) of the Criminal Code Act of the Northern Territory of Australia, section 31(4) of the
Criminal Code Act Compilation Act 1913 of Western Australia, section 17 of the Canadian
Criminal Code and section 24 of the Crimes Act 1961 of New Zealand.

(2) To found a plea of duress the threat relied on must be to cause death or serious injury. In
Alexander MacGrowther's Case (1746) Fost 13 , 14, Lee CJ held: "The only force that doth
excuse, is a force upon the person, and present fear of death ..." But the Criminal Law
Commissioners in their Seventh Report of 1843 (article 6, p 31) understood the defence to apply
where there was a just and well-grounded fear of death or grievous bodily harm, and it is now
accepted that threats of death or serious injury will suffice: Director of Public Prosecutions for
Northern Ireland v Lynch [1975] AC 653 , 679 and R v Abdul-Hussain [1999] Crim LR 570 .

(3) The threat must be directed against the defendant or his immediate family or someone close
to him: Smith & Hogan, Criminal Law, 10th ed, p 258. In the light of recent Court of Appeal
decisions such as R v Conway [1989] QB 290 and R v Wright [2000] Crim LR 510 , the current
(April 2003) specimen direction (no 49) of the Judicial Studies Board suggests that the threat
must be directed, if not to the defendant or a member of his immediate family, to a person for
whose safety the defendant would reasonably regard himself as responsible. The correctness of
such a direction was not, and on the facts could not be, in issue on this appeal, but it appears to
me, if strictly applied, to be consistent with the rationale of the duress exception.

(4) The relevant tests pertaining to duress have been largely stated objectively, with reference to
the reasonableness of the defendant's perceptions and conduct and not, as is usual in many other
areas of the criminal law, with primary reference to his subjective perceptions. It is necessary to
return to this aspect, but in passing one may note the general observation of Lord Morris of
Borth-y-Gest in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 ,
670:

"it is proper that any rational system of law should take fully into account the standards of honest
and reasonable men. By those standards it is fair that actions and reactions may be tested."

(5) The defence of duress is available only where the criminal conduct which it is sought to
excuse has been directly caused by the threats which are relied upon.

(6) The defendant may excuse his criminal conduct on grounds of duress only if, placed as he
was, there was no evasive action he could reasonably have been expected to take. It is necessary
to return to this aspect also, but this is an important limitation of the duress defence and in recent
years it has, as I shall suggest, been unduly weakened.

(7) The defendant may not rely on duress to which he has voluntarily laid himself open. The
scope of this limitation raises the most significant issue on this part of this appeal, and I must
return to it.