Defences

Defences

1. Duress

   • Can only be raised in certain cases, so not every duress is a defence.
     • Immediacy requirement
       • R v Hudson and Taylor (1971)
         • R v Hasan (2005)
     • Proximity of relationship can be issue - defence may only apply where person threatened is closely connected to accused
       • R v Conway (1989)
       • R v Wright (2000)
     • Obligation on accused to avail himself of chance to reassert own will - Whelan states duress operates until reasonable opportunity to reassert will, then defence defeated
       • R v Hurley and Murray (1967)
     • Duress unavailable to anyone who voluntarily exposes themselves to inherent risk of threat
       • DPP for NI v Fitzpatrick (1977)
     • Old common law presumption that if woman committed crime in presence of husband, she did so under duress.
       • People (DPP) v Walsh and Connelly (1981)
   • People (AG) v Whelan (1934)
   • R v Howe (1987)
   • Law Reform Commission's 2006 paper recommends: a) To claim for duress, feared threat should be one of death or serious harm b) Response should be objectively assessed. c) Nature and seriousness of threat should be based on reactions of reasonable man with accused characteristics. d) Failure to seek official protection shouldn't preclude defence. e) Defence shouldn't be available to those who willingly expose to criminal orginisation.
   • R v Marin (1989)
     • Set out 3 main principles: 1) Defence of necessity usually arises as duress and is good defence where accused's will is overpowered by wrongful threats or violence. 2) Only available if, objectively, accused acted reasonably and proportionately to avoid threat of death/serious injury 3) Jury should determine whether accused was compelled to act as he did and would person of reasonable firmness with same characteristics act in same way?
   • Economic duress will not suffice to raise duress, for policy reasons.
     • Southwark London Borough Council v William (1971)
     • People (DPP) v Kelly (2004)
   • Limitation of duress is the immediacy requirement
     • Lord Advocate's Reference (No 1 of 2000) (2001)
       • Held if threat isn't immediate, it would allow accused find less criminal course of conduct by which to avert danger.
   • R v Abdul-Hussain (1999)

2. Necessity

   • Involves threat of death or serious personal violence - threat emanates from circumstances.
   • R v Dudley and Stephens (1884)
   • Re A (Children) (Conjoined Twins: Surgical Invention (2001)
     • Could docs operate on twins where 1 depended on other for survival? Separation meant one would die, if left together both would die - parents didn't consent to HSE sought order allowing operation. HC allowed as death of weaker twin would result from omission - CoA rooted decision in necessity, examining historical, policy and comparative perspectives. Brook LJ noted public interest in saving one life as opposed to losing two, need to keep law in touch with morality, fact that this was emergency situation, family law thinking that requires docs to save baby and sanctity of life. Sir James Stephen set out three requirements for necessity: a) Act needed to avoid inevitable and irreparable evil b) No more should be done than is reasonably necessary for purpose to be achieved. c) Evil inflicted must not be disproportionate to evil avoided.
     • LRC (2006) recommends defence continue on traditional basis and should apply to cases where duress isn't available and where accused chooses criminal activity due to constrained choice.

3. Lawful use of Force

   • Governed by mix of law and statue
     • S18-20 Non-Fatal Offences Against the Person 1997 - use of force in non-fatal offences
       • S. 18 – if person uses reasonable force in circumstances, as they believe them, no offence. • Must be relationship of proportionality between force and perceived threat. • Force can be used to: a. Protect yourself or family member from injury, assault or detention caused by criminal act. b. Protect yourself or another (with their authority) from trespass to person. c. Protect property from apportionment, destruction or damage caused by criminal act or (with another’s authority) from trespass or infringement. d. Prevent crime or breach of peace.
         • S. 18(6) – no defence if force directed against Garda acting in course of duty or person assisting.
         • S. 18 (7) – no defence if brought about state of affairs involved or brought it about so they could use force.
           • May be available if conduct is unlawful
       • S. 19 – can use force to effect lawful arrest. • Force must be reasonable and belief of circumstances need not be reasonable, once its honest (but reasonable factors will be considered by court in determining if honest).
         • People (DPP) v McGinty (2003)
       • S. 20(2) – may take preparatory steps in using lawful force (eg: possession of weapon to protect oneself).
       • S. 20(4) – no compulsion on accused to retreat or attempt retreat before using force, but presence of opportunity to do so will be considered by court.
     • Common law - use of force in homicide
       • People (AG) v Keatley (1954)
       • Also introduces concepts of necessity and proportionality
         • Accused must believe force is necessary
         • If more force than necessary used, it constitutes assault
       • Can use force to address threat, but cannot use once threat has passed
         • People (DPP) v Ceka (2004)
         • People (DPP) v Commane (1975)
         • R v McInnes (1971)
   • If motive is anything other than self-defence, cannot claim lawful use.
     • People (AG) v Coffey (1967)
   • If accused created situation which he was attacked, cannot claim lawful use
     • DPP for NI v Browne (1973)
     • People (DPP) v Doran (1987)
   • Effect of lawful force defence is t hat it reduces murder to manslaughter
     • People (AG) v Dwyer (1972)
     • UK have rejected half-way approach to Irish Courts:
       • Palmer v R (1971)
         • Followed in R v Clegg (1995)
     • Burden on prosecution to disprove - R v Quinn (1965)
       • R v Clarke (1994)
     • People (DPP) v Barnes (2007)
       • Several other points from judgement: a. Owner no longer permitted kill burglar just for being burglar (cites A. 40.3.1 and A. 40.3.2). b. Owner not obliged to retreat when he finds burglar (cites inviolability of dwelling). c. Owner’s failure to retreat cannot be considered when determining if fatal force was necessary

4. Provocation

   • Only defence to murder
   • R v Camplin (1978)
   • R v Duffy (1949)
   • Original UK test
     • Bedder v DPP (1954)
     • HoL reformulated law on provocation
       • DPP v Camplin (1978)
         • Can approach difficulties
           • R v Newall (1980)
           • People (DPP) v MacEoin (1978)
   • 1. Loss of Self-Control Caused by Provocation
     • • 1st limb of test is whether accused provocation to extent he lost control at time of killing? • Court/jury must consider character, circumstances and temperament. • Prosecution must prove he wasn’t provocation to lose self-control. • Doesn’t suffice to prove reasonable person wouldn’t have been so prov.
       • • McAuley and McCutcheon criticise subjective nature of 1st limb: • Eg: white supremacist who genuinely believes its gravest insult for black to speak to white – kills black who speaks to him due to bigoted passion – under strictly subjective test, even though belief is morally repugnant and unreasonable, law technically protects. • Defence should be circumscribed by policy limitations and denied in cases where to allow it would be morally outrageous.
     • People (DPP) v Mullane (1997)
     • People (DPP) v Kelly (2000)
     • People (DPP) v David (2001)
   • 2. Reaction to Provocation
     • • 2nd limb of test is unreasonable and excessive force will vitiate defence. • Required accused’s reaction be reasonable – but if he lost control, surely reaction couldn’t be reasonable • Subsequently, Court of Criminal Appeal has stressed this limb is subjective.
     • People (DPP) v Mullane (1997)
     • People (DPP) v Kelly (2000)
     • People (DPP) v Delaney (2010)
     • R v Acott (1996)
     • R v Gross (1913)
     • Mancini v DPP (1942)
     • Edwards v The Queen (1973)
     • R v Johnson (1989)
     • R v Ahluwalia (1992)
     • LRC (2003) - provisionally recommend defence be focussed as matter of policy on conduct of deceased, which would bring it in line with Canada, Australia and New Zealand. • 2 part inquiry by jury: a. Did deceased provoke accused? b. Should accused have reacted as he did? • Judged by ordinary community standards of self-control and proportionality – avoid terms ‘objective’ and ‘subjective’ completely. • Excuse based issues should continue to play role – mental disorders (see Newall and Holley) should be outside provocation and within diminished responsibility. • Domestic homicide cases should have express statutory provisions.

5. Infancy

   • Common law, 3 categories of child liability purposes.
     • a. Those presumed irrefutably capable of crime (doli incapax) – under 7. b. Those presumed incapable, but rebuttable – 7-14. c. Those presumed capable of crime – 14 or more.
   • • S. 52 Children Act 2001 – no child under 12 shall be charged with any offence – however, child 10/11 may be charged with murder, manslaughter, rape, s. 4 rape and aggravated sex assault.
   • • S. 76(c) – where child under 14 charged, court may dismiss case on merits if, having regard to age and maturity of child, it determines child didn’t have full understanding of AR or MR of crime.

6. Intoxication

   • Defence makes intoxicated person incapable of forming mens rea needed for an offence – mere drunkenness is no defence.
   • People (AG) v Manning (1955)
   • Majority of cases involve alcohol, but does include drugs.
     • R v Lipman (1970)
   • Suggested there is a distinction between drugs known to cause violent effects and those that don’t.
     • R v Bailey (1983)
     • R v Hardie (1984)
   • Distinction between crimes of specific intent vs crimes of basic intent – intoxication only defence for 1st.
     • DPP v Beard (1920)
     • DPP v Majewski (1977)
       • Accepted in R v Caldwell (1982)
       • Irish courts approved
         • People (DPP) v O'Reilly (2004)
     • Contrast
       • The Queen v O'Connor (1980)
       • Daviault Case (1994)
   • Dutch courage doesn't provide defence
     • AG for NI v Gallagher (1961)
   • Involuntary intoxication can be a defence
     • R v Kingston (1994)
     • R v Allen (1988)
     • People (DPP) v Murphy (2003)
   • LRC recommends: a. Defence should be placed on statutory footing. b. Self-induced intoxication can never be a defence. c. Innocent intoxication can be made a defence. d. Intoxication should be considered innocent if accused didn’t know substance would or might induce aggression or if they took it under medical advice in line with instructions.

7. Insanity

   • Criminal Law (Insanity) Act 2006 reforms both procedural and substantive areas.
     • State (C) v Min for Justice (1976)
     • • S. 4(2) – test is whether accused, by reason of mental disorder, is unable to understand nature/ course of proceedings. • Can affect any part of trial (eg: plea, summary/indictment election).
     • • S. 1 – ‘mental disorder’ defined as any mental illness/disability, dementia or disease of mind. • Specifically excludes intoxication – status of disease of mind from drink is unclear but may come under diminished responsibility.
   • Common Law basis
     • R v McNaghten (1843)
   • Concept of 'disease of mind'
     • R v Kemp (1957)
     • Bratty v AG for NI (1963)
     • R v Sullivan (1984)
     • R v Burgess (1991)
     • Diabetics form own special category as disease can cause disease of mind or automatism
       • R v Quick (1973)
       • R v Hennessy (1989)

8. Mistake

   • R v Reid (1973) and People (DPP) v Healy (1990)
   • People (DPP) v Dwyer (1972)
   • DPP v Morgan (1975)

9. Unconstitutionality

   • Accused may argue crime he is charged with violates Constitution - defence of last resort due to difficulty of establishing
   • CC v Ireland (2006)
   • McGee v AG (1974)
   • Norris v AG (1984)
   • Related doctrine of vagueness
     • King v AG (1981)
     • People (DPP) v Cagney (2008)