Criminal Law I Lecture VII: General Defences II

By: Dr. Janeille Zorina Ma1hews

 Introduc=on

Introduc=on Mistake Self-Defence Duress Necessity

• What is the
difference
between these
defences and
those we
looked at last
week?
• What do these
defences have
in common?

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 Introduc=on

Important Themes in Criminal Law

q ACT V. OMISSION: How much conduct is enough?
When is failure to act enough? When should
accomplices/conspirators be held criminally liable?
q CONDUCT V. INTENT: What mental state ought to be
required to send someone to prison?
q PRIMACY OF INTENT: What is the relaTonship between
intent and moTve?
q DEFENCES: If there is liability, when should we give
people a defence?
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 Introduc=on

“An act does not make a man guilty of a crime, unless his mind is also guilty.”
--Haughton v. Smith [1975] AC 476 at 491

Three Components of Criminal Liability

Actus Reus Mens Rea No Defence
The actual The criminal state The absence of an
criminal act – the of mind – the exculpatory defence,
conduct intent jusTficaTon or excuse
The conduct must The intent may Where a defence is
be proven be inferred raised, the prosecuTon
must negate it by proof
beyond reasonable
doubt

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 Mistake

Introduc=on Mistake Self-Defence Duress Necessity

• Mistake of law
• Mistake of fact

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 Mistake

MISTAKE
“Ignorance of the law is no excuse”

It is no defence for the defendant to say

that she did not know the actus reus was
an offence, if she intended to do it and did

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 Mistake

Two Types of Mistake Can Absolve Criminal Liability

1. Mistakes prevenTng the defendant from

having the mens rea for an offence

2. Mistakes relaTng to a defence

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 Mistake

Mistake Nega=ng Mens Rea

A defendant cannot be convicted of an offence
if, because of a mistake, she lacked the state of
mind which the prosecuTon is required to prove
• The mistake must be honest and need not be
reasonable

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 Mistake

Mistake Rela=ng to a Defence

Mistake must be reasonable with respect to:

• Duress by threats
• Duress by necessity
• IntoxicaTon
Mistake must be honest with respect to:
• Consent
• Self-defence

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 Self-Defence

Introduc=on Mistake Self-Defence Duress Necessity

• When is self-
defence allowed?
• What is the focus
of the doctrine?

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 Self-Defence

When is Self-Defence Allowed Generally?

1. There must be a threat of unjusTfied harm

2. There must be a protected interest

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 Self-Defence

ELEMENTS OF SELF-DEFENCE
(1) Threat must be unjusTfied
(2) Imminent
(3) Of deadly force or serious injury
(4) Honest belief that there is a threat
(5) Response must be with reasonable
force

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 Duress

Introduc=on Mistake Self-Defence Duress Necessity

• Duress by
Threats
• Duress by
circumstances

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 Duress

DURESS
The defence of duress arises where a
defendant is threatened by another with
death or serious injury if she does not
commit a crime; Duress is the response to
the classic scenario: “do this or else”.

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 Duress

Threats v. Circumstances

Duress by Threats: compelled to do

something against her free will by
threat of death or serious bodily harm
Duress of Circumstances: a choice
between two evils

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 Duress

DURESS: THE RULE

(1) Threat must be unjusTfied
(2) Risk of serious bodily injury or death
(3) Threat must be imminent
(4) It must be reasonable to give in
(5) Must not have been self-made condiTon
(6) Must not have been murder, a1empted
murder or treason

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 Duress

What does this mean?

Two Prong Test:
1. Was the defendant, or may the defendant
have been, impelled to act as she did
because she reasonably feared death?
2. Would a sober person of reasonable
firmness, sharing the characterisTcs of
the defendant, have acted in the same
way?

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 Duress

Duress of Circumstances

• Duress of Circumstances is determined in

essenTally the same way as duress by
threats
• Main difference: threat need not be
immediate

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 Necessity

Introduc=on Mistake Self-Defence Duress Necessity

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 Necessity

NECESSITY
Although courts have tended to use the terms
necessity and duress of circumstance
interchangeably, a true defence of necessity
at English common law does not exist. The
one major excepTon to this rule seems to be
with respect to medical treatment

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Difference Between Necessity and Duress of Circumstances
Necessity
➭Threat need not be of death
or serious injury
➭Threat need not need be
imminent
➭Focus is on balancing evils,
not on parTcular defendant’s
condiTon
➭Ought to be a defence when
the defendant kills one person
in order to save the life of
more than one
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Necessity
Duress of Circumstances
➭Threat must be of death or
serious injury
➭Threat must be imminent
➭The focus is on the
defendant’s condiTon or
vulnerability
➭Not a defence to murder,
a1empted murder or treason
 Necessity

Superior Orders

• No such defence at English common law

although it is a defence in parts of the
United States and in other jurisdicTons
• Again, are we simply ignoring reality and
focusing on our aspiraTons?

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