In my last blog post, we started looking at some of the general defences that can be used in criminal law. These are the ones that can be used for most crimes, rather than specific defences which only apply to one particular crime, such as the partial defences to murder. Instead, the defences we will be looking at are focused more on general conditions around a crime, rather than needing to meet particular requirements related to that crime.
Nevertheless, these defences cannot be used for every crime. For example, we saw in the last post that voluntary intoxication cannot be used as a defence where the mens rea is recklessness, as the defendant had already shown reckless behaviour by becoming intoxicated in the first place.
Last time, we considered the defences of intoxication, self-defence, prevention of crime and mistake. In this blog post, we will be looking at the defences of duress, necessity, insanity and automatism.
Duress
Duress occurs when the defendant is threatened by death or grievous bodily harm if they do not commit the crime that the person making the threats demands. This threat does not have to be directed towards the defendant; it could be towards an individual they feel responsible for, such as their child or spouse. Duress can be a defence to nearly all crimes, including manslaughter, although it cannot be used as a defence to murder, as this would lower the protection offered to the innocent.
However, duress will only be a defence where a two-part test is passed. The first part of this is subjective and asks whether the defendant honestly felt threatened in some way. The second part is objective and asks whether a sober person of reasonable firmness, with the same characteristics as the defendant, would also have felt threatened.
Necessity
The defence of necessity is closely related to duress. In fact, it is sometimes called duress of circumstances and occurs when the defendant acts in an illegal way to prevent the consequences which would otherwise result. For example, someone might drive on the pavement to avoid hitting a pedestrian in the middle of the road, which would probably qualify as necessity. An exception might be where it was possible for them to simply stop.
The test for necessity has three parts, with the first part asking whether the act was done only to avoid consequences which could not otherwise be avoided and which if they followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil. In essence, the act must be the only option available to the defendant to prevent harm from happening to themselves or someone they feel responsible for.
The next part of the test requires that no more was done than was reasonably necessary for that purpose. This is an objective test that asks whether the defendant reacted within the bounds of reasonableness and only did what was actually necessary to prevent harm.
The final part of the test checks that the evil inflicted by the harm was not disproportionate to the evil avoided. This means that the defendant’s necessary act cannot have caused more harm than they avoided by acting.
Insanity
The defence of insanity is currently under review, as its use leads to stigmatisation of people with mental health issues. The original defence of insanity was first used in an assassination attempt against Robert Peel in 1843, so the rules presented in that are considerably out of date.
Instead, mental health will be a special consideration in various defences. For example, in the defence of duress, the second, objective test, can be adjusted to ask whether the defendant’s mental health has an impact on their perception of the threat. Similar adjustments can be made for the defences of self-defence and automatism.
In addition, mental health should be taken into account when considering the two partial defences to murder: diminished responsibility and loss of control. Both of these defences can easily be interpreted to include mental health issues.
Automatism
There are actually two types of automatism that can be used as a defence – insane automatism and non-insane automatism. The defence of insane automatism is being reviewed in a similar way to the defence of insanity, as discussed above, so we will be focusing on non-insane automatism in this section.
Non-insane automatism occurs when the defendant reacts in an entirely involuntary way. A common example is a driver losing control of the car due to being attacked by a swarm of bees.
There is a three-part test for non-insane automatism. Firstly, the involuntary action must be due to an external factor or a reflex. Secondly, there must be a complete loss of control. Finally, the automatism must not be self-induced.
Wrapping Up
I hope that these blog posts have helped you learn the defences available to someone being tried with a criminal offence. Next time, we will be looking at some of the defences available in tort law, so come back in two weeks for that!
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