1. Issues and principles to consider regarding Mick and a plea of self-defence.

The Subjective Test: Here we should consider whether Mick honestly perceived, or could
have perceived, Linda’s threat to have been a genuine one1; even if Mick was mistaken in his
belief, such as found in the case of R v Gladstone Williams (1984)2. However, it’s important
to note that if Mick’s mistaken belief was a manifestation due to intoxication, he could not
apply self-defence3.

If Mick honestly held the belief that Linda was going to harm him (even if she had not
seriously implied intent), the subjective test for self-defence could still be applied.

The Objective Test: Given the threat posed by Linda, did Mick respond with a reasonable
level of force—? This is where the prosecution will have to demonstrate that the force was
excessive before leaving it to the jury to decide, this is because when a defendant pleas self-
defence it is up to the prosecution to disprove. Nonetheless, we should consider cases such
as R v Martin (2001)4:

We find in the case of R v Martin (2001)5 that self-defence was rejected by the jury. Martin
took aim and fired at two intruders whilst they were retreating, killing one and wounding the
other. He was convicted for murder and wounding with intent, however on appeal, Martin’s
personality disorder was considered, and the murder conviction was quashed for reasons of
diminished responsibility.

Although we can pick out strands of similarity with Mick’s case, Martin did not receive a
direct threat of violence, although due to his personality disorder Martin perceived a threat
to his life and property. Since the jury did not consider Martin’s mental health at the initial
trial, if Mick has any medically recognised mental health conditions that would be relevant
to his actions, it’s something that should be presented6.

A Pre-emptive Strike: There is no rule in law to suggest that a victim must wait to be
attacked before engaging in an act of self-defence7. If there is genuine belief of an impending
attack the defendant may strike the first blow. In the case of Martin, the pre-emptive strike
was unreasonable given the threat, but when looking at Mick’s situation, he has been told
that Linda will turn up at his house with weapons she intends to use, a far more palpable
threat of violence.

Legitimate Purpose: Linda and Mick are members of a criminal gang and given the nature of
their association and membership we must consider whether Mick was acting for a

1
Criminal Justice and Immigration Act 2008 S76 (4)
2
R v Gladstone Williams (1984) 78 Cr. App. R. 276
3
Criminal Justice and Immigration Act 2008 S76 (5)
4
R v Martin (Anthony Edward) [2001] EWCA Crim 2245
5
R v Martin (Anthony Edward) [2001] EWCA Crim 2245
6
Homicide Act 1957 s.2
7
CPS, 'Main content area Self-Defence and the Prevention of Crime' (Crown Prosecution Service, 30 September
2019) https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime accessed 2 September 2021
(Pre-emptive Strike)
 legitimate purpose of self-defence, and not an act of revenge or malice following their
disagreement8.

Duty to Retreat: Something to be measured against both the subjective and objective test is
the possibility of whether Mick could’ve retreated. Failure to walk away from a fight does
not necessarily demonstrate an unwillingness to participate (R v Bird 1985)9. Since Mick is at
home, it’s unreasonable to assume he could retreat, and this would then be considered a
householder case10.

In the case of R v Hussey (1924)11, a man fired a gun at his landlady and her accomplices
whilst they were trying to unlawfully evict him. His conviction of wounding was quashed as
the Lord Chief Justice stated, “in defending his home he need not retreat, as in other cases of
self-defence, for that would be giving up his house to his adversary.”
Note: Today, this would not likely pass the objective test for self-defence as the defendant
used unquestionably unreasonable force. There would also be legal redress to protect the
defendant from unlawful eviction12.

Householder Case: Section 43 of the Crime and Courts Act 201313 made amendments
applying to householder cases, giving people defending themselves (or others) in their
homes, from intruders, greater legal protection.
Section 76(5A)14 states, “In a householder case, the degree of force used by D is not to be
regarded as having been reasonable in the circumstances as D believed them to be if it was
grossly disproportionate in those circumstances.”
In other words, it is possible for householders to use disproportionate force when defending
themselves (or others) in their homes.

Overview: Given the criminal association and threat, it isn’t inconceivable that Mick honestly
holds the belief that he is in danger of serious harm from Linda. The use of force could be
reasonable, if Mick believes Linda is carrying a firearm or another deadly weapon. A pre-
emptive strike is compatible with self-defence. Deciding whether Mick had legitimate
purpose must be considered, as if Mick is seeking revenge, it would remove the availability
of self-defence. Mick could not reasonably retreat from his home, and this is a householder
case, which means if Mick’s pre-emptive strike was disproportionate, it could still be
recognised as reasonable.

2. Issues and principles to consider regarding Patricia and a defence of duress.

8
Criminal Justice and Immigration Act 2008 s.76 (7) (a) (b)
9
R v Bird [1985] 1 WLR 816
10
CPS, 'Main content area Self-Defence and the Prevention of Crime' (Crown Prosecution Service, 30
September 2019) https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime accessed 2
September 2021 (Householder Case)
11
R v Hussey 1924 18 App R 160
12
Protection from Eviction Act 1977
13
Crime and Courts Act 2013 s.43
14
Criminal Justice and Immigration Act 2008 s.76 (5A)
 The defence of duress by threats is neatly illustrated in the case of R v Hasan (2005)15 by
Lord Bingham16. Duress is an absolute defence that leads to an acquittal, and so looking to
Patricia’s case we can follow the seven steps set out by Lord Bingham to determine how
Patricia could apply a defence of duress.

1. Threat of serious injury: This seems straightforward in Patricia’s case, as the threat must
be physical and serious in nature. A lesser harm would not suffice, such as damage to
property or public shaming or exposing personal secrets (R v Valderamma-Vega 1985 17).
Ian has threated to kill Patricia’s sister so we can accept there has been a serious threat.

2. Threat to person or someone close to them: Does the threat apply to the person
(Patricia), or a close family member? This would also apply to someone close to the
person or someone for whom they are responsible. Again, we find this rule
straightforward in this step, as Ian has threatened to kill Patricia’s sister, who is a close
family member.

3. Reasonable response to the threat: Here we can apply the two-stage test outlined in R v
Graham (1982) and applied in Howe (1987)18. Firstly, we look at the subjective test; was
Patricia compelled to act as she did due to the circumstances as she believed them to
be? It’s a question that begs for further detail, however a threat to kill one’s sister on the
surface could understandably be believed.

The second is objective. Lord Hailsham in Howe (1987) deliberated that “the defence of
duress failed if the prosecution proved that a person of reasonable firmness sharing the
characteristics of the defendant would not have given way to the threats as did the
defendant.19”

This is interesting because although this is an objective test, we can consider some of
the characteristics of the defendant to decide whether their actions were reasonable
given their personal attributes.

For example, in the case of R v Bowen (1996):

The defendant committed several crimes claiming he was under duress, however the
defence failed, and Bowen was convicted. On appeal, it was argued that Bowen was a
man of lower intelligence however the appeal was dismissed, and the conviction was
upheld. A lower IQ is not an accepted characteristic for duress.

The accepted characteristics submitted by Stuart Smith LJ20 are age, gender, pregnancy,
serious physical disability, recognised psychiatric conditions and mental illness. Self-
imposed characteristics such as alcohol/drug abuse, would not be applicable21. If any of
15
R v Hasan (2005) 2 A.C 467
16
R v Hasan (2005) 2 A.C 490
17
R v Valderamma-Vega [1985] Crim LR 220
18
R. v Howe (Michael Anthony), [1987] A.C. 417
19
R. v Howe (Michael Anthony), [1987] A.C. 421
20
R. v Bowen (Cecil), [1997] 1 W.L.R. 379
21
CPS, 'Defences - Duress and Necessity' (Crown Prosecution Service, 19 October 2018)
https://www.cps.gov.uk/legal-guidance/defences-duress-and-necessity accessed 2 September 2021
 these characteristics present as relevant to Patricia, they should be taken into
consideration.
As things stand, Patricia committed a crime of robbery to prevent a more heinous crime
of murder from being perpetrated.

In the case of A-G v Whelan (1933)22, the defendant was convicted of handling stolen
goods. On appeal it was heard that the defendant had acted under duress of an
immediate threat of serious violence. Murnaghan J held that “it seems to us that threats
of immediate death or serious personal violence so great as to overbear the ordinary
power of human resistance should be accepted as a justification for acts which would
otherwise be criminal”.

This is an important case to measure against Patricia’s defence since it demonstrates

where a lesser crime has been committed to prevent a violent crime, the defendant has
an available defence of duress by threat.

Patricia robbed a shop to save her sister, if she honestly believed Ian’s threat, we could
satisfy both the subjective and objective test for duress.

4. Causation between threat and conduct: Here we have the ‘but for—’ test. There must be
a causal nexus between the threat and the crime.

In the case of R v Cole (1994)23, the appellant argued he was under a direct threat of
serious violence from a loan shark and committed several robberies under duress to
repay the money. The defence was unsuccessful since the loan shark never told the
appellant to commit a crime to repay the loan. The conviction was upheld.

For a defence of duress to be successful there must be a direct causal link between the
crime and the threat. For Patricia we have a nominated crime; Ian told Patricia to rob
the shop, and therefore it’s straightforward to use the ‘but for—’ test in this scenario,
since Patricia wouldn’t have robbed the shop, but for the serious threat from Ian.

5. No evasive action possible: An inescapable pressure to offend, the immediacy of a threat

has been broadened by judicial interpretation (R v Hudson & Taylor 197124). The threat
might not be imminent, but if the threat is operating in the defendant’s mind whilst they
commit the offence, the defence of duress could still be available, but if Patricia knows
her sister is safe in a police station and still perpetrates the crime, she could not rely on a
defence of duress.

6. Involuntarily subjected to threats: Joining a criminal gang or criminal organisation will

nullify most claims of duress. This isn’t always the case as found in R v Shepherd (1988) 25
by where a defendant joins a non-violent gang and finds themselves unexpectedly
forced to engage in violent crime. If Patricia is a member of a gang or has put herself in a

22
A-G v Whelan [1993] IEHC 1
23
R v Cole [1994] Crim LR 582
24
R v Hudson & Taylor [1971] 2 WLR 1047
25
R v Shepherd (1988) 86 Cr App R 47
 situation where she might encounter violent criminals (Hasan 200526), then she could
not rely on a defence of duress.

7. No defence to murder or treason: Duress is not a defence to murder, attempted murder,

or treason. Blackstone27 wrote (and cited in Howe28) “a man under duress: "ought rather
to die himself than escape by the murder of an innocent."

This rule doesn’t visibly apply to Patricia’s case as she’s only been told to commit
robbery. Had she killed someone during the robbery, she could not rely on a defence of
duress. This rule has received wide criticism29 considering other defences can be applied
to murder, such as self-defence, defence of others or provocation. These defences can
lead to lesser sentencing and in some cases, acquittal.

3. Possible criminal liabilities and issues regarding Penny and Pat.

From the outlook of this scenario, it is apparent that Penny and Pat have conspired to
commit a bank robbery, and Pat may have gone a step further in attempting to carry out the
robbery, only to be foiled by the complexity of the bank’s revolving door. Conspiracy and
attempt are both inchoate offences which means they are incomplete crimes, which are
categorised as criminal acts in themselves.

Under Section 1(1) of the Criminal Law Act 1977 30 it states: “If a person agrees with any
other person or persons that a course of conduct shall be pursued which, if the agreement is
carried out in accordance with their intentions, either will necessarily amount to or involve
the commission of any offence or offences by one or more of the parties to the agreement, or
would do so but for the existence of facts which render the commission of the offence or any
of the offences impossible, he is guilty of conspiracy to commit the offence or offences in
question.”.

A statutory conspiracy is an indictable only offence, or triable either way31, this would
encompass robbery, so we can proceed to explore whether Penny and Pat are guilty of an
offence under this statute.

The Mens Rea: The mens rea for conspiracy is largely intent32. There must be intention to be
party to an agreement to commit an (indictable) offence, paired with the intention that one
of more of those parties would carry out the agreement. Mens rea for conspiracy incudes
failing to prevent an offence. It does not matter if a party considers the offence impossible to
execute.
26
R v Hasan (2005) 2 A.C 467
27
Blackstone, Commentaries on the Laws of England (1857 ed.), vol. 4, p. 28
28
R. v Howe (Michael Anthony), [1987] A.C. 427
29
The paradox of disallowing duress as a defence to murder, J. Crim. L. 2014, 78(1), 65-79
30
Criminal Law Act 1977 S.1(1)
31
CPS, 'Inchoate Offences' (Crown Prosecution Service, 21 December 2018) https://www.cps.gov.uk/legal-
guidance/inchoate-offences accessed 2 September 2021
32
Finch Emily and Fafinski Stefan, Criminal Law (7th Edition, Pearsons 2019) 56
 The Actus Reus: The three elements of actus reus for conspiracy are an agreement, between
the parties (at least two people), to pursue a course of conduct33. Not all parties need be
participating in the planned conduct to fulfil the actus reus of committing conspiracy.

We are given that Penny and Pat discuss committing an indictable offence. They enter into
an agreement, by picking a date and a time to commit a robbery at a bank. This fulfils the
mens rea for conspiracy. They have also entered into an oral agreement, between
themselves to a specified course of conduct (by picking a date and time). Both Penny and Pat
have fulfilled the actus reus for conspiracy and would by liable under section 1(1) of the
Criminal Law Act 197734.

There are however exceptions to who can conspire, and the following categories are
excluded:

Spouses and civil partners35. (Must be valid in English law).

Those under the age of criminal responsibility36.
The intended victim37.

There’s nothing to suggest Penny or Pat are the intended victim, but it’s quite possible
Penny and Pat are married or civil partners. We should also verify that neither are below the
age of criminal responsibility. This would exempt Penny and Pat from an offense under the
Criminal Law Act 1977, section 1(1)38.

A paper published by the Law Commission39 referred to spousal exemption as a ‘conspicuous

anomaly’, and provisionally proposed that the exemption from liability for statutory
conspiracy for spouses and civil partners be abolished (under proposal 740). An argument is
presented that this law is rooted in biblical origins, and that exempting a married couple
from this statute bolsters the unity of marriage41. The paper then turns against this
argument, calling it ‘fiction’, and firmly squares it as outdated42. Non-married co-habiting
couples in long term relationships are denied this exemption, and given the landscape of
modern society, it seems incredibly unfair.

Pat has moved beyond conspiracy, and we should consider whether he/she has moved
beyond the preparatory stages and made an attempt to carry out the robbery.

The key statute here is the Criminal Attempts Act 1981, Section 1(1)43 and like conspiracy,
this statue only covers indictable offences.

33
Finch Emily and Fafinski Stefan, Criminal Law (7th Edition, Pearsons 2019) 56
34
Criminal Law Act 1977 s.1(1)
35
Criminal Law Act 1977 s. 2(2)(a)
36
Criminal Law Act 1977 s. 2(2)(b)
37
Criminal Law Act 1977 s. 2(2)(c)
38
Criminal Law Act 1977 s. 1(1)
39
The Law Commission, Conspiracy and Attempts. (Consultation Paper 183)
40
The Law Commission, Conspiracy and Attempts. (Consultation Paper 183) 9.29
41
The Law Commission, Conspiracy and Attempts. (Consultation Paper 183) 9.11
42
The Law Commission, Conspiracy and Attempts. (Consultation Paper 183) 9.16
43
Criminal Attempts Act 1981 s.1(1)
 The mens rea, again relies firmly on intent to commit the offence44 and the actus reus asks
that there is an act (not an omission) that is more than merely preparatory to the
commission of an offence45.

We are told that Pat goes to the bank with the intention to commit robbery, and this fulfils
the mens rea. The issue is Pat gets stuck in a revolving door and doesn’t carry out the
robbery. An interesting point to note when considering attempt, is that if Pat had carried out
the robbery he wouldn’t be charged with attempt, as this would be replaced by the
completed crime. Pat would still be charged with conspiracy, regardless.

To decide whether a defendant has moved past the merely preparatory stage, the courts
consider whether the defendant has committed the penultimate act—are they one step
away from committing the offence? There appear, however, to be some inconsistencies in
court judgements.

In R v Griffen (1993)46, a mother had planned to remove her children from the custody of
their father and was apprehended before picking them up from school. She was convicted of
attempt. In contrast in R v Geddes (1996)47, the defendant hid in a school’s toilets, with
masking tape and a knife, and yet had his conviction of attempting to imprison a child
overturned because the defendant hadn’t moved beyond preparation.

At the point Pat was stuck in the revolving door, had Pat demonstrated psychological
commitment to complete the crime? Like Geddes, Pat still had the option to walk away, and
this might dissuade a conviction for attempt.

Bibliography

A-G v Whelan [1993]

Blackstone, Commentaries on the Laws of England (1857 ed.), vol. 4

Crime and Courts Act 2013

44
Finch Emily and Fafinski Stefan, Criminal Law (7th Edition, Pearsons 2019) 52
45
Finch Emily and Fafinski Stefan, Criminal Law (7th Edition, Pearsons 2019) 52
46
R v Griffin [1993] Crim LR 515 (CA)
47
R v Geddes [1996] Crim LR 894 (CA)
Criminal Attempts Act 1981

Criminal Justice and Immigration Act 2008

Criminal Law Act 1977

Finch Emily and Fafinski Stefan, Criminal Law (7th Edition, Pearsons 2019)

Homicide Act 1957

J. Crim. L. The paradox of disallowing duress as a defence to murder, (2014)

Protection from Eviction Act 1977

R v Bird [1985]

R v Cole [1994]

R v Geddes [1996]

R v Gladstone Williams (1984)

R v Griffin [1993]

R v Hasan (2005)

R v Hasan (2005)

R v Hudson & Taylor [1971]

R v Hussey [1924]

R v Martin (Anthony Edward) [2001]

R v Shepherd [1988]

R v Valderamma-Vega [1985]

R. v Bowen (Cecil), [1997]

R. v Howe (Michael Anthony), [1987]

The Crown Prosecution Service

The Law Commission, Conspiracy and Attempts. (Consultation Paper 183)