Criminal Murder defences:

The defendant must be respond to an unjustified threat:

R. v Field (CA (Crim Div)) Court of Appeal (Criminal Division) c.1972

F was convicted of the manslaughter of W. He was acquitted of murder on the basis of lack of intent. His defence was self-defence. There was a feud between F and W and F was warned by A that W and others were looking for him intending to attack him; F did not keep off the streets despite the warning, and a subsequent one. When W found F, F could not retreat and stabbed W when attacked.

Summary: Held, that although it was a matter of degree, no one was obliged to go out of the way of possible attackers and the defence of self-defence was not precluded by F's not remaining indoors in the face of warnings of attack. The relevance of F's conduct was that it was a factor for the jury to consider when deciding whether it was reasonable for him to use force and to use a knife; conviction quashed.

Beckford v Queen, The (PC (Jam)) Privy Council (Jamaica) 15 June 1987

R. v Oatridge (Gaynor) (CA (Crim Div)) Court of Appeal (Criminal Division) 23 October 1991

When relying on the defence of self-defence, the defendant's honest belief is an important consideration in deciding whether the response was commensurate with the degree of danger and the jury should have been directed on that point. O was charged with the murder of her cohabitee. At trial she gave evidence that on the night in question her victim was drunk and abusive and had uttered threats to kill her. He had seized her throat and squeezed it. Believing that he was about to kill her, O had picked up a carving knife and stabbed him. In summing up, the trial judge directed the jury on the question of self-defence but gave no direction on mistaken belief.
Summary: Held, allowing the appeal, that in cases where the defence of self-defence is relied on, further directions to the jury might be required. In this case further directions were required. O believed she was under attack and, if so, was her response commensurate with the degree of risk she believed herself to be under.

B (A Child) v DPP (HL) House of Lords 23 February 2000

B, a boy aged 15, repeatedly requested a 13 year old girl to perform oral sex during a bus journey. He was charged with inciting a girl under 14 to commit an act of gross indecency, contrary to the Indecency with Children Act 1960 s. 1(1) . B maintained a not guilty plea on the basis that he had honestly believed that the girl was over 14. He altered his plea to guilty after a decision by the justices that his state of mind concerning the victim's age could not provide a defence. An appeal by way of case stated was dismissed ([1999] 3 W.L.R. 116). B appealed to the House of Lords, contending that as the 1960 Act was silent as to the mental element of the offence, the common law presumption that mens rea was necessary should apply. The Crown argued that the offence was one of strict liability, that the law in this area had been regarded as settled since the decision in R. v Prince (Henry) (1872-75) L.R. 2 C.C.R. 154 Crown Cases Reserved, and that subsequent legislation, namely the Sexual Offences Act 1956 and the 1960 Act itself, had not been intended to change this approach, especially since an express exception had been created in s. 6(3) of the 1960 Act whereby belief as to age could provide a defence in prescribed circumstances.

Summary: Held, allowing the appeal, that (1) the common law presumption of mens rea applied in the case of s. 1(1) of the 1960 Act. The presumption was well established in the absence of a specific contrary intent expressed by Parliament, Sweet v Parsley [1970] A.C. 132 HL applied. The submission that the 1956 Act had reinforced the decision in Prince was ill founded in view of the fact that the disparate offences within the 1956 Act displayed no clear pattern. The interpretation of s. 1 of the 1960 Act could not be based on the contents of another piece of legislation unless that legislation gave cogent guidance. Further, the decision in Prince ran counter to the presumption established by Sweet v Parsley; (2) a defendant was entitled to be acquitted of the offence if he honestly believed that the child in question was aged 14 or over and it was not necessary that his belief had to be based on reasonable grounds. There had been a general move from an objective to a subjective assessment, DPP v Morgan [1976] A.C. 182 HL and Beckford v Queen, The [1988] A.C. 130 PC (Jam) applied and R. v Williams (Gladstone) [1987] 3 All E.R. 411 CA (Crim Div) approved and (3) the burden of proving that the defendant lacked honest belief that the child was aged 14 or over lay with the prosecution.

The Force used is necessary to rebut the threat

R. v Renouf (John William) (CA (Crim Div)) Court of Appeal (Criminal Division) 31 January 1986

Abstract: A defence under the Criminal Law Act 1967 s. 3(1) is open to a person charged with reckless driving in certain circumstances. The appellant was working on the forecourt of his garage when another vehicle drew up, and the occupant hurled objects damaging his car's windscreen and hitting him. The appellant, having told his wife to telephone the police, set off in pursuit and forced the car on to the verge, ramming it when stationary. He was charged with reckless driving. His defence under s. 3(1) of the 1967 Act was that he was using reasonable force to assist the lawful arrest of offenders. The judge directed that s. 3(1) was incapable of affording him a defence.

Summary: Held, allowing the appeal, that the defence was open on a charge of reckless driving and should have been left to the jury.

R. v Cousins (Robert William) (CA (Crim Div)) Court of Appeal (Criminal Division) 9 February 1982

A lawful excuse may exist within the Offences against the Person Act 1861 s. 16 if a threat to kill was made for the prevention of crime or for self-defence, provided that it is reasonable in the circumstances to make such a threat; what is reasonable is always a question for the jury. D made a threat to kill and was charged under the Offences against the Person Act 1861 s. 16, as substituted. His defence was that he had a lawful excuse within s. 16 in that he was acting in self-defence by seeking to forestall what he reasonably believed was a planned attack on himself, and was also acting in the prevention of crime within the meaning of the Criminal Law Act of 1967 s. 3 . The judge directed the jury that no question of lawful excuse could arise because his life was not in immediate jeopardy, and the issue was withdrawn from the jury. He was convicted.

Summary: Held, quashing the conviction, that in the light of the 1967 Act s. 3 and the common law right to use reasonable means in self-defence, a lawful excuse could exist within the 1861 Act s. 16 if a threat to kill was made for the prevention of crime or self-defence, provided that it was reasonable in the circumstances to make such a threat; the question of what was reasonable should always be left to a jury. The prosecution must prove that there was no lawful excuse, and if there was evidence of facts which gave rise to lawful excuse the jury had to be directed that the prosecution must prove absence of lawful excuse. As there were such facts here, the judge should have left the issue to the jury.

Blake v DPP (DC) Divisional Court 21 December 1992

Abstract: A vicar was convicted of criminally damaging a concrete pillar within the Houses of Parliament by writing a biblical quotation on it. He appealed on the grounds that he was carrying out the instructions of God, and that God being the ultimate owner of all was the person entitled to consent to the damage.

Summary: Held, dismissing the appeal, that a belief that one has the authority of God, no matter how strongly or sincerely held, does not amount to a defence under English law.

The second requirement is that it must be shown that it was necessary for the defendant to use force in order to avoid the threat.

R. v Bird (Debbie) (CA (Crim Div)) Court of Appeal (Criminal Division) 22 March 1985

Failure to demonstrate unwillingness to fight is not fatal to a plea of self-defence. It is however, a factor to be taken into account. There was a fight at a party between D and her ex-boyfriend. D hit the man in the face with a glass with the result that he lost an eye. D was charged with unlawful wounding. She pleaded self-defence. The judge directed the jury that a person claiming to exercise a right of self-defence should demonstrate by her action that she did not want to fight. D was convicted and sentenced to youth custody.

Summary: Held, allowing the appeal, that failure to demonstrate unwillingness to fight was not fatal to a plea of self-defence. It was merely a factor to be taken into account. There was a material misdirection and consequently the conviction must be quashed (R. v Julien (Thomas) [1969] 1 W.L.R. 839 CA (Crim Div)

Attorney General's Reference (No.2 of 1983), Re (CA (Crim Div)) Court of Appeal (Criminal Division) 3 February 1984

The defence of lawful object is available to a defendant facing a charge under the Explosive Substances Act 1883 s. 4 if he can satisfy a jury on a balance of probabilities that his object was to protect himself, his family or property, against immediate attack, and the measures were reasonably necessary. Per curiam: Although a person may make a petrol bomb with a lawful object, nevertheless if he remains in possession of it after the threat has passed which made his object lawful, it may cease to be so. It will only be very rarely that circumstances will exist where the manufacture or possession of petrol bombs can be for a lawful object. D's property had been attacked and damaged by rioters. He feared further attack and made some petrol bombs which he intended to use only to repulse raiders from his property. He was charged with having made an explosive substance in such circumstances as to give rise to a reasonable suspicion that he had not made it for a lawful object, contrary to the Explosive Substances Act 1883 s. 4(1) . A prosecution submission that self-defence was not open to D was rejected, and the jury, who were directed to consider the reasonableness of the means adopted for self-defence, acquitted D. The Attorney General referred for the court's opinion whether self-defence was available to such a defendant charged under s. 4(1).

Summary: Held, that the defence of "lawful object" was available if the defendant could satisfy the jury on a balance of probabilities that his object was to protect himself or his family or property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers (R. v Fegan (James) [1972] N.I. 80 CCA (NI) applied. Dicta in Palmer (Sigismund) v Queen, The [1971] A.C. 814 PC (Jam) considered and in Evans v Hughes [1972] 1 W.L.R. 1452 QBD considered).

R. v McInnes (Walter) (CA (Crim Div)) Court of Appeal (Criminal Division) 29 July 1971

Where a plea of self-defence is raised to a charge of murder, it is not the law that the accused must have retreated as far as he could. The appellant, who was a "greaser," caused the death of the deceased by a knife wound in the left side of the body, which had penetrated the heart. The incident occurred during a fracas with "skinheads," though the deceased was not of that persuasion. At his trial, the appellant claimed that he brandished the knife because he was frightened by the "skinheads" and that the injury occurred accidentally when the deceased ran onto the knife. He was convicted of murder and sentenced to life imprisonment; he appealed on the ground that the trial judge failed to direct the jury to return a verdict of manslaughter if they found that the killing was in self-defence.

Summary: Held, 1) that it was not necessary for such a defendant to have retreated as far as he could; but failure to retreat was a material factor in considering the reasonableness of the defendant's conduct; (2) where excessive force was used by an accused in self-defence and death resulted it did not follow that he could only be convicted of manslaughter; in fact the plea of self-defence afforded the accused no protection at all, although the facts relied on might for independent reasons render the proper verdict one of manslaughter. (° Palmer v. R.°° Irving v. R.° followed; R. v Howe (1958) 32 A.L.J.R. 212 HC (Aus) applied, and dicta of Widgery L.J. in R. v Julien (Thomas) [1969] 1 W.L.R. 839 CA (Crim Div) applied, and of Salmon L.J. in R. v Cascoe (Handel Barrington) [1970] 2 All E.R. 833 CA (Crim Div) applied).

R. v K (Age of Consent: Reasonable Belief) (HL) House of Lords 25 July 2001

K appealed against a decision ([2001] 1 Cr. App. R. 35, [2000] C.L.Y. 1004) of the Court of Appeal which had allowed the Crown's appeal brought under the Criminal Procedure and Investigations Act 1996 s. 35 against a judge's ruling that, for the purposes of a charge under the Sexual Offences Act 1956 s. 14 of indecently assaulting a girl under the age of 16, the Crown was required to establish the absence of a genuine belief that the girl was 16 or over at the time of the incident. It had been submitted by the Crown that the omission of a statutory defence in relation to the belief of the girl's age, and the inclusion within that section of particular circumstances to exempt an offender from liability owing to his belief or knowledge, suggested that Parliament had not intended for a defendant to escape liability on that basis.

Summary: Held, allowing the appeal, that there was nothing in the Act to suggest that Parliament had intended the offence to be one of strict liability and thus differentiate between an offence under s. 14 and, for example, rape under s. 1. Following a review of the legislative history and subsequent authorities, the House found that the judge's ruling had been correct and therefore it was necessary for the Crown to prove the absence of a genuine belief that the girl was 16 or over when the offence was committed. The reasonableness of such belief was relevant; the more unreasonable the belief, the less likely it was that it would have been genuine. Unless excluded by express words or necessary implication, guilty knowledge would be a required element of a statutory offence, B (A Child) v DPP [2000] 2 A.C. 428 HL applied and R. v Williams (Gladstone) [1987] 3 All E.R. 411 CA (Crim Div) considered.

R. v Howe (Michael Anthony) (HL) House of Lords 19 February 1987

Duress cannot be a defence to murder. When one incites another to commit murder and that other is convicted of manslaughter, the inciter may nevertheless be convicted of murder. In the first appeal, A and B were taken to a desolate place by X, together with the victim. A, B and X assaulted the victim, and X killed him. On another occasion, A and B strangled their victim. On a further occasion, their victim escaped. A and B were charged on two counts of murder and one count of conspiracy to murder. Their defence was duress in that they feared for their own lives from X. The judge left that defence on the first murder, and the conspiracy, but not on the second. In the second appeal, C and D were charged with murder. C had killed the victim, but his defence was that he had agreed with D to kill through fear that he himself would be killed by D, and that the gun had gone off accidentally. The judge directed the jury that duress was no defence to murder, but that it could be relevant in deciding whether C's act was unintentional, or whether C was guilty of manslaughter. He directed the jury that if they convicted C of manslaughter, they could not convict D of murder. C and D were convicted of murder. Appeals to the Court of Appeal were dismissed.

Summary: Held, dismissing the appeals that duress was no defence to a charge of murder. Further, the judge had erred in the second appeal, and D could have been convicted of murder, even if C had been acquitted, and convicted of manslaughter. Per curiam: when the defence of duress is raised the test is whether the threat was of such gravity that it might well have caused a reasonable man placed in the same situation to act in the same way (R. v Dudley (Thomas) (1884-85) L.R. 14 Q.B.D. 273 QBD and Abbott v Queen, The [1977] A.C. 755 PC (Trin) applied; R. v Graham (Paul Anthony) [1982] 1 W.L.R. 294 CA (Crim Div) approved; DPP for Northern Ireland v Lynch [1975] A.C. 653 HL overruled; and R. v Richards (Isabelle Christina) [1974] Q.B. 776 CA (Crim Div) overruled).

R. v Conway (Francis Gerald) (CA (Crim Div)) Court of Appeal (Criminal Division) 28 July 1988

Necessity was a defence to a charge of reckless driving where duress of circumstances was established. D was charged with reckless driving. D accepted that his manner of driving could be considered reckless but contended that he drove in the same way as any reasonable man would have done in his circumstances. A passenger in D's car, T, had previously been the target of an attack with a shotgun. When two plainclothes police officers approached D's car, he feared that T was about to be shot at again. He drove off and the officers gave chase. D claimed he only discovered that the chasers were police officers after T had been dropped off and the officers caught up with him. The trial judge did not direct the jury as to the existence and application of any defence of necessity to the charge against him.

Summary: Held, allowing D's appeal, that necessity can only be a defence to a charge of reckless driving where the facts establish duress of circumstances, i.e., D was constrained to drive as he did to avoid death or serious bodily harm to himself or another. The defence was only available if D could be said from an objective standpoint to be acting in order to avoid death or serious injury. If a reasonable man would not have driven as D did in the circumstances, the defence was not established R. v Denton (Stanley Arthur) (1987) 85 Cr. App. R. 246 CA (Crim Div) distinguished; R. v Willer (Mark Edward) (1986) 83 Cr. App. R. 225 CA (Crim Div), R. v Graham (Paul Anthony) [1982] 1 W.L.R. 294 CA (Crim Div) applied.

R. v Ali (Mumtaz) (CA (Crim Div)) Court of Appeal (Criminal Division) 15 November 1994
Appealed against sentence following conviction of assault occasioning actual bodily harm. He drove up alongside a young woman who was walking home shortly after midnight, and offered her a lift which she declined. He then got out of the car, seized her by the shoulder and neck and tried to drag her in to a public convenience. The young woman resisted and managed to free herself. A drove away at high speed. Another young woman to whom he had offered a lift noted his number and he was subsequently arrested. A was sentenced to three years' imprisonment, passed as a longer than normal sentence under the Criminal Justice Act 1991 s. 2(2)(b) .

Summary: Held, allowing the appeal, that there was no evidence in this case of dangerous and serious harm in the future. He was a young man of essentially previous good character and there was nothing in his record or in the pre-sentence report which indicated that the offence was anything other than an aberration. The offence was serious and must have had either a sexual motive or one of financial gain, but in the circumstances of this case, a single offence of this kind was in itself insufficient evidence to enable the statutory test to be satisfied. In determining the appropriate sentence under the 1991 Act s. 2(2)(a), the court took into account that the offence took place at night and was a terrifying experience for the victim. The sentence of three years could not necessarily be attacked, but as it had been imposed as a longer than normal sentence, a sentence of two years was substituted, R. v Bowler (Kevin) (1993) 15 Cr. App. R. (S.) 78 , R. v Fowler (Paul Henry) (1994) 15 Cr. App. R. (S.) 456, R. v Williams (Francis Dennis) (1994) 15 Cr. App. R. (S.) 330, R. v Lyons (John Joseph) (1994) 15 Cr. App. R. (S.) 460, R. v L (Henry George) (1994) 15 Cr. App. R. (S.) 501, R. v Nicholas (Anthonis) (1994) 15 Cr. App. R. (S.) 381 and R. v Crow (William John) (1995) 16 Cr. App. R. (S.) 409 considered.