Tutorial 5: Defences

1. What is the difference between defences of justification and defences which

are excuses? Why is it important that we make such a distinction?

- Justification renders a conduct lawful – no offence committed

- Excuse just allows immunity from liability either wholly or partly, but the

conduct is still illegal

- To see act is awful or unlawful - establish diff degree of unworthiness

2. What needs to be satisfied for the defence of self-defence (public and private

defence) in England? Is the law on this satisfactory?

- Criminal Justice And Immigration Act 2008: in determining whether the

force used for self-defence was reasonable, s 76 recognizes

self-defence as a common law defence, as well as s 3 of the Criminal

Law Act 1967

- S 3 Criminal Law Act 1967: to prevent crime // to assist in lawful arrest

of offenders, suspected offenders or persons unlawfully at large

- Burden of proof is on the prosecution to rebut the existence of this

defence – Palmer

- Elements: (a) the use of force

(b) assessing reasonable force

(c) all or nothing

a. The use of force

- Initiating violence

1. Only as a last resort

2. Art 2(2) ECHR: only when it is absolutely necessary

 3. Browne: the need to act must not have been created by the

conduct of the def in the immediate context of the incident which

was likely or intended to give rise to that need.

4. Rashford: the mere fact that a def had gone to the scene merely

to exact revenge did not necessarily rule out self defence. The

question is whether violence offered by the victim was so out of

proportionate to the def’s own act.

- Duty of retreat

1. The court in Julien seems to have suggest there is a duty to

retreat

2. Bird: no obligation to retreat if defendant showed they did try but

was unable to

3. S 76 Criminal Justice and Immigration Act 2008: no duty to

retreat but attempts to do so would be taken into consideration

by the court

- The immediacy of the threat

1. Beckford: pre-emptive strike is allowed

b. Assessing reasonable force

- Owino [used objective test] : test for self defence (Obj and Subj test) –

a person could use such force in defence of himself or another as was

reasonable in the circumstances he honestly believed it to be.

- S 76 CJAIA2008: put Owino test on a statutory footing

- Gladstone Williams → s 76(4)(a) CHAIA2008: whether D reasonably

believed or not is the main issue. The more unreasonable the belief,

the less likely that he honestly believed it

 - Palmer: [excessive force was used] a margin of error is allowed →

Martin: mental illness caused the def to believe that he was in greater

danger than it really was

c. All or nothing

- Clegg: self defence is either applicable or inapplicable

3. Is self-defence allowed as a defence in Malaysia? Discuss.

- In malaysian law, self-defence is known as private defence in the Penal

Code.

- S 96 PC: nothing is an offence which is done in the exercise of the right

of private defence

- S 97 PC: everyone has the right to defend

a. is own body, and the body of another person against any offence

affecting the human body

b. His own property and the property of another person against

(attempted) theft, robbery, mischief or criminal trespass

- Extent of private defence for body

● S 100PC: to cause death – to protect from death, grievous hurt,

rape, unnatural lust, abduction, wrongfully confining

● S 101 PC: to cause harm

● Starting point: s 102 – as soon as reasonable apprehension of

danger to the body

● “Reasonable apprehension” – Musa: whether there was a

reasonable apprehension of such danger. No obligation to

retreat
 ● S 106: if in the effectual exercise of private defence, innocent

persons are at risk of being harmed during this exercise, the

person exercising this right can extend to running this risk.

- Extent of private defence of property

● S 103: cause death – robbery, house breaking at night, mischief

by fire, or reasonable apprehension of such

● S 104: to cause harm

● S 105: when the right to the exercise of priv defence ends

➔ Theft – offender retreats // public authorities arrive //

property recovered

➔ Robbery – offender no longer causes/attempts to cause

death, hurt or wrongful restraint // no more fear of instant

^^

➔ Criminal trespass / mischief – the offender discontinues

the crime

➔ House breaking at night – when the offender stops

● Reasonable apprehension

➔ Mohd Rafi: the threat must be imminent, present and real

● When there is no right to priv defence (exceptions)

➔ S 99(1): act done by public servant

➔ S 99(2): act done with the direction of public servant

➔ S 99(3): when there is time to seek help from public

authorities

➔ S 99(4): inflicting more harm than necessary

-
 -

4. Billy was playing a fool with Jane and was jokingly trying to hit her with his

umbrella. Charlie came along and he punched Billy in the face causing a bad

bruise. What could be Charlie’s criminal liability?

- Criminal liability: battery, causing ABH (bad bruise) // s 47

English law

- Acting in defence of Jane?

● Circumstances believed by Charlie (does not matter if the

thought is reasonable. As long as C honestly believed in it -

Gladstone Williams) the more unreasonable the belief is, the

less likely that the belief was honestly held

➔ B was trying to hit J with his umbrella - C thought B was

going to cause injury to J

● Reasonable force - consider the element of proportionality (is it

necessary or is it as a last resort?) According to Palmer, a

margin of error is allowed.

➔ Yes, proportionate - the harm done by a punch is

proportionate to the harm which could be inflicted by an

umbrella

➔ No, there are other means of preventing the harm - could

have pushed B away, pulled J away and run away from

B, shouted at B telling him to stop, holding B’s hands to

prevent B to use the umbrella etc

Malaysian law
 ● S 96 - 106 PC: right to defend the body of another person

against any offence affecting the human body

● S 101 PC: cause harm

● S99

● S 102: reasonable apprehension of harm

● S105

● Musa: no obligation to retreat. Whether there was a reasonable

apprehension of danger – yes, Billy was acting as if he would hit

Jane with an umbrella

5. Is the case Dudley and Stephens authority that necessity can never be a

defence? What are the subsequent authorities which show that necessity can

be used as a defence? Is it a recognized defence in Malaysia?

- Necessity not defence for murder [murder case cannot]

6. What is the rationale behind the defence of duress? Should the defence of

duress be extended to cover murder? Discuss with reference to English and

Malaysian law.

- There exist two defences of duress: duress by threats and duress of

circumstances.

- Where the defence of duress is successfully pleaded it absolves the

defendant of all

- criminal liability.

- The rationale behind the defence of duress is that whilst the defendant

clearly has the mens rea of the crime, in committing the crime, they are

acting out of compulsion and are therefore not exercising freedom of

choice. In this respect the defence of duress differs from most

 defences which seek to demonstrate the defendant lacked the mens

rea for example, intoxication, insanity and mistake.

- The defence of duress also differs from the defences of self-defence

and prevention of crime which perhaps provide a justification for

committing a crime. Duress operates to provide an excuse for criminal

behavior.

- An account of duress was given in A-G v Whelan as “threats of

immediate death or serious personal violence so great as to

overbear the ordinary powers of human resistance.”

- The basic principles governing duress have been expounded in R v.

Graham.

1. Was the defendant, or may he have been, impelled to act as he

did because, as a result of what he reasonably believed to be

the situation he feared that otherwise death or serious injury

would result?

2. If so would a sober person of reasonable firmness sharing the

characteristics of the defendant would not have responded to

the situation by acting as the accused did?

- The reasonable person is of average fortitude, i.e. strength and

firmness of mind:

- R v Hegarty and R v Horne: The defendant sought to introduce

psychiatric evidence that he was especially vulnerable to threats. His

aim was to argue that this characteristic of vulnerability should be

attributed to the reasonable man when the objective test was applied.

The Court of Appeal refused to admit the evidence in both cases

 because it rejected the argument that the reasonable person should be

endowed with the characteristic. The rationale of the objective test was

to require reasonable firmness to be displayed and it would completely

undermine the operation of that test if evidence were admissible to

convert the reasonable person into one of little firmness.

- Duress by Threat:

- Here the defendant is coerced into committing an unlawful act by the

threats of a wrongdoer. The House

- of Lords has elaborated the principles above in R v. Hasan, where the

court had convicted the defendant

- for aggravated burglary rejecting his defence of duress. Lord Bingham

had placed restrictions on its

- application.

- The threat or danger must be of death or serious injury.

- The threat must be directed against the defendant, his or her

immediate family or someone

- close to the defendant.

- The relevant tests are in general objective, with reference to the

reasonableness of the

- defendant’s perceptions and conduct.

- The defence is available only where the criminal conduct for which it is

sought to excuse has

- been directly caused by the threats relied upon.

- There must have been no evasive action the defendant could

reasonably have been expected to

- take.

- The defendant must not voluntarily have laid themselves open to the

duress relied upon.

- Duress may be a defence to any crime except some forms of treason,

murder and attempted

- murder.

- 1. The threat or danger must be of death or serious injury:

- Threats to reveal sensitive information alone are insufficient to raise the

defence.

- R v. Valderama Rega: The threat of exposing defendant’s

homosexuality was not enough to raise

- the defence.

- Severe pain does not amount to serious injury.

- R v. Quayle: Duress of circumstances was not an answer to the

conviction under the Misuse of

- Drugs Act for a defendant who claimed that he had consumed

cannabis to combat severe

- neurological pain following a leg amputation.

- Qualification to this restriction:

- R v. A: A credible threat of rape could ground the defence of duress or

duress of circumstances.

- 2. The threat must be directed against the defendant, his or her

immediate family or
- someone close to the defendant:

- R v. Shayler: Shayler was a member of MI5 and had signed a

declaration under the Official

- Secrets Act. In breach of this he had provided journalists with 30

documents which he had

- obtained through his position and which related to national intelligence

and security issues.

- During a case management hearing the judge ruled that the defence of

duress of circumstances

- was not available to Shayler. He appealed against this ruling

contending that the disclosure was

- necessary to safeguard members of the public. His appeal was

dismissed. Whilst the defence of

- duress could be raised in offences under the Official Secrets Act, there

was insufficient precision

- in Shayler’s claims. He could not identify the action that was going to

create imminent threats to

- life, nor could he identify the potential victims or establish that he had

responsibility for them.

- 3. The relevant tests are in general objective, with reference to the

reasonableness of the

- defendant’s perceptions and conduct.

- R v. A: The defendant was convicted of the offence of perverting the

course of justice when she

- falsely retracted allegations of rape against her husband. She did so in

the belief that she would

- suffer serious injury by her husband if she did not. This fear was not

based on any reasonable

- grounds as no threat of violence had been made to her when she

made the false retractions.

- R v. Shayler: The defendant’s belief was not reasonable as there was

no plausible case appearing

- in the leaked documents that members of the public were at imminent

risk of death or serious

- injury.

- R v. Abdul Hussain: The execution of the threat need not be

immediate. . Imminent peril of

- death or serious injury is an essential element of both types of duress.

The defence of duress is

- available to those who hijack an aircraft, although in such cases the

terror induced in innocent

- passengers will raise issues of proportionality for determination.

- R v. Bowen: The appellant had on 40 occasions obtained electrical

goods amounting to a value

- of £20,000 by deception. He had so acted because of threats to petrol

bomb himself and his

- family. The appellant was abnormally suggestible and vulnerable. He

had a low IQ of 68. The trial

- judge did not direct the jury as to whether the characteristics of the

defendant could be taken

- into account. He was convicted and appealed. The appeal was

dismissed and conviction upheld.

- Characteristics of being abnormally suggestible and vulnerable were

not compatible with a

- person of reasonable firmness and therefore were not characteristics

that could be taken into

- account. Also a low IQ falls short of being a mental impairment and

cannot be taken into

- account. Stuart Smith LJ identified the following characteristics that

could be taken into

- account: Age, sex, pregnancy, serious physical disability, a recognized

mental illness or

- psychiatric condition.

- R v. Sewell: Where a reasonable person has been reduced through

trauma such as cumulative

- domestic violence or rape to a condition of learned helplessness and

so unable to resist the

- threats of their abuser, this should be taken into account.

- 4. The defence is available only where the criminal conduct for which it

is sought to

- excuse has been directly caused by the threats relied upon.

- This requires the defendant to execute or participate in the crime

because of the threat. In Valderama

- Vega, the Court held that if the defendant had smuggled cocaine solely

on the basis of the threat this his

- homosexuality would be revealed, he would not have been able to

plead the defence.

- 5. There must have been no evasive action the defendant could

reasonably have been

- expected to take:

- The defence is not available if it could have been avoided whether by

escaping the coercer or seeking

- police protection.

- R v. Gill: The defendant had been left alone outside his yard which he

was due to rob. He was

- not given the defence as he could have had raised the alarm and

escape the threat.

- R v. Hudson and Taylor: The teenage girls were charged with perjury

when they were

- threatened of being cut up. They were convicted as the threat could

hardly be carried out

- immediately in open court. However, the Court of Appeal allowed the

appeal stating that police

- protection was not always reasonably to be expected.

- R v. Hasan: The above approach has been abandoned and now the

defence is not available

- unless the defendant reasonably apprehended immediate or almost

immediate death or serious

- injury for failure to comply.

- 6. The defendant must not voluntarily have laid themselves open to the

duress relied

- upon:

- Intoxication:

- R v. Graham: The jury should be directed to disregard any evidence of

the defendant's

- intoxicated state when assessing whether he acted under duress,

although he may be permitted

- to raise intoxication as a separate defence in its own right.

- Voluntary subjection to the risk of coercion:

- Placing oneself voluntarily at the risk of coercion:

- R v. Sharpe: The defendant was a party to a conspiracy to commit

robberies who said that he

- wanted to pull out when he saw his companions equipped with guns,

whereupon one of the

- robbers threatened to blow his head off if he did not carry on with the

plan. In the course of the

- robbery, the robber killed a person. The defendant was convicted of

manslaughter and appealed.

- In dismissing the appeal, the Court of Appeal held that a man must not

voluntarily put himself in

- a position where he is likely to be subjected to such compulsion.

- R v. Heath: D was charged with possessing cannabis with intent to

supply. He argued duress that

- he was a heroin user and had become indebted to his own supplier,

who had threatened serious

- injury if he did not assist. It was held that D had voluntarily placed

himself in a situation where it

- was likely that he would be subjected to threats and pressured into

committing a criminal

- offence thereby precluding the defence of duress for subsequent

criminal conduct.

- 7. Duress may be a defence to any crime except some forms of

treason, murder and

- attempted murder:

- DPP v. Lynch: D was an accessory to murder in that he drove a car to

a place under threats from

- an IRA gunman M. D waited while M and his associates killed a

policeman, and then drove them

- away. It was held by a 3-2 majority in the House of Lords allowed his

defence of duress.

- R v. Howe: D acting under duress, took part with others in two separate

murders, and on a third

- occasion the intended victim escaped. Using the 1966 Practice

Statement the House of Lords

- departed from the decision in Lynch. Duress is not available as a

defence to murder either to a

- principal or accessory. Morals, law and policy should deny a man the

right to take an innocent

- life even at the price of his own.

- R v. Gotts: D aged 17 caused serious injuries when he stabbed his

mother with intent to kill her.

- He alleged that his father told him to do so and threatened to kill him if

he did not carry out his

- wishes. Following the decision in R v Howe, as duress is no defence to

murder it would be

- illogical to apply this defence to attempted murder.

- R v. Ness: Duress is a defence to conspiracy to murder.

- Duress of Circumstances:

- Here the defendant is compelled to commit an unlawful act by external

circumstances.

- R v. Willer: D drove ‘recklessly’ at about 10 mph through a pedestrian

precinct to escape from a

- gang threatening violence to him and his passengers. Duress should in

any case have been left to

- the jury. This was not the usual sort of duress - the gang had not told D

to drive on the pavement

- - but duress of circumstances could be used even where necessity

could not.

- R v. Conway: The defendant mistakenly believed that he was being

attacked by a gang when in

- fact they were plain clothes police officers trying to make an arrest on

his passenger. The

- defence remained available as the mistake was a reasonable one.

 - R v. Martin: Disqualified driver drove stepson to work (had overslept)

fearing he would lose his

- job that would cause wife to commit suicide. Duress of circumstances"

should have been

- considered as a defence. This was the first time the defence was

recognized as a separate

- defence.

- R v. Pommell: D found in bed with a loaded machine gun. D claimed

that he had taken it off

- another man to prevent him using it, and was going to take it to the

police in the morning. It was

- held that he should have been allowed to raise the defence of duress

of circumstances, but that

- the jury would need to consider his behavior with the gun to decide if

the duress had ceased.

- These cases reflect justifications rather than excuses and thus the

defence begins to transmute into a

- defence of necessity.

7. Peter, Paul and Mary were on board a plane when it crashed in a remote

place in some mountainous area. Only the 3 of them survived. They waited

many days but no rescue was forthcoming. They were hungry and they have

run out of food. Peter told Paul to kill Mary so that they can eat her flesh.

When Paul refused, Peter threatened him saying if Paul did not kill Mary, then
 Peter himself will kill Paul. Paul then tried to kill Mary but Mary took a knife

and stabbed Paul, causing a deep wound.

a. What criminal offences could possibly have been committed?

- There are only two ways where a person can participation which

are accessory or joint perpetrators.

English Law

Paul

- Attempted murder

- S 1(1) Criminal Attempts Act 1981

➔ “If, with intent to commit an offence to which this section

applies, a person does an act which is more than merely

preparatory to the commission of the offence, he is guilty

of attempting to commit the offence.”

- Possible defences

● Peter threatened Paul – duress ?

● Type of threat

➔ The type of threat must be of death or serious

injury – Lynch (satisfied)

➔ Need not be directed at D – R v Wright (satisfied)

➔ Threat Must be operating on D’s mind when he

committed the offence – Hudson and Taylor

(assumably satisfied)

➔ The offence committed must be the one nominated

by the person making the threat – Cole (satisfied –

p ask to kill M)
 ● Test for duress

➔ Subjective test + objective test

➔ Subjective test

★ Did the Defendant act because of his

reasonable belief in the threat? (possibly as

he is desperate).

➔ Objective test

★ Would a person of reasonable firmness

have acted as the Defendant act?

● However, duress is not available as a defence to

murder or attempted murder (gotts)

➔ R v Howe

➔ Gotts – attempted murder

● Paul is liable for attempted murder

Mary

- Inflicting GBH

- Wounding

- Possible defences

● Self-defence ? Mary thinks that Paul was trying to kill her.

Proportionality

● Use of force

➔ Initiating violence

★ Paul initiated the violence

➔ Duty to retreat
 ★ Bird – there was no way for D to retreat.

There is also no duty for D to retreat

★ Mountainous area – Mary could have

retreated. But no duty on Mary to retreat

➔ The immediacy of the threat

★ Beckford – immediacy of threat must be

shown for D to take pre-emptive strike

★ The threat of Paul killing Mary is immediate

- Assessing reasonable force

● Owino – the test for self-defence was that a person could

use such force in the defence of himself or another as

was reasonable in the circumstances as he honestly

believed them to be

● A margin of error is allowed – Palmer

● The threat to Mary was death – using a knife which

inflicted deep wound to ward off Paul is reasonable force

● In this case, the force is reasonable as she cannot run

away as they are in the middle of no way.

- What did Mary believe in

● She believed that Paul was going to kill her/ inflict serious

BH on her

- Is the force reasonable

● Yes - proportionate to defend herself - wounding is not as

serious as the threat

- Can raise self defence here by Mary

Peter

- S8 - procure + counsel as he threatened Paul to kill Mary

(procure by threats).

- S 45 SCA 2007 – Encouraging or assisting an offence believing

it will be committed

● A person commits an offence if—

a. he does an act capable of encouraging or assisting

the commission of an offence; and

b. he believes—

1. that the offence will be committed; and

2. that his act will encourage or assist its

commission.

● MR: s 47

- Defendant must intend/believe that the offence he

encourages/assists should be committed

- With the mens rea required for that offence; OR

- Be reckless as to that fact; OR

- Have the mens rea for it himself.

- Peter is jointly liable for attempted murder

- Defence of necessity? Actually, it is under duress

● Dudley and Stephens

● There was an element of choice here – defence of

necessity will likely be rejected

Malaysian Law

- S 94 - fear of instant death

 ● Must only be directed at the victim

- M self d

b. Few days later, as Paul was getting weak, Peter killed Paul off. Both

Peter and Mary survived from eating Paul’s flesh until rescue came.

What possible criminal offences have been committed?

Peter

- Murder

Possible defences

- Necessity?

- Dudley and Stephens

8. Explain and evaluate the case of M’Naughten. Is the law on insanity

satisfactory? Compare it with the law on insanity in Malaysia and discuss.

What is The M'Naghten Rule:

The M'Naghten Rule is a legal principle used in the insanity defense in

criminal law in Malaysia. It is based on the case of Daniel M'Naghten, a

Scottish woodcutter who was acquitted of murder on the grounds of insanity in

1843.

Under the M'Naghten Rule, a person can only be found not guilty by

reason of insanity if they can prove that they did not understand the nature

and quality of their actions, or that they did not know that what they were

doing was wrong.

In Malaysia, the M'Naghten Rule is recognized as a valid defense in

criminal cases, although the specific criteria for evaluating a claim of insanity
 may vary from one jurisdiction to another. The burden of proof is typically on

the defendant to prove their insanity, and this can be a challenging task.

In order to succeed with an insanity defense in Malaysia, the defendant

must provide clear and convincing evidence of their mental illness and its

effect on their ability to understand the wrongfulness of their actions. The

court may also consider expert testimony from psychiatrists or other mental

health professionals, as well as other evidence such as the defendant's prior

history of mental illness or treatment.

Overall, the M'Naghten Rule provides a limited form of protection for

those who are suffering from mental illness and who have committed a crime

as a result of their illness. However, the defense can be difficult to prove, and

it is often a matter of interpretation and discretion for the court

9. When can intoxication be used as a defence in England and in Malaysia?

English law

- Basic intent crime

● If voluntary intoxication = no defence; Majewski, O’Grady //

Lipman: self-induced drunkenness was no defence to

manslaughter.

● Involuntary intoxication = may be a defence / must show lack

of MR // Kingston: a drugged person may still intend, although

def was involuntary intoxicated, he still intended to sexually

assault the boy.

- Specific intent

● Proof of actual intent is necessary for MR

 ● No difference voluntary and involuntary – both may be defence

for intoxication

● Too intoxicated to have formed an intention – Beard: Def

charged for murder argued that he was too intoxicated to intend

the crime but the court found no evidence of him being

intoxicated

● AG for NI v Gallagher: intoxication a defence to murder if

1. He was so drunk he did not know what he was doing and

could not form the intention to kill

2. It brought a disease of the mind causing insanity

Malaysia law

- S 85 and 86 of PC

- Must have evidence of intoxication – Ismail bin Uk Abdul Rahman

- 2 scenarios – s 85(2)

● S 85(2)(a): did not know that such act / omission was wrong or

did not know what he was doing; and the state of intoxication

was caused without his consent by the malicious / negligent act

of another person

● S 86(1): if satisfied ^^, acquitted

● S 85(2)(b): did not know that such act / omission was wrong or

did not know what he was doing; and by reason of intoxication

(temporarily or otherwise)

● S 86(1): ^^ the court may treat this case like the case of

unsound mind
 - S 86(2): determine whether the person charged had formed any

intention, specific or otherwise

- Kenneth Fook: intoxication cannot be used as a defence against

murder, specifically under s 300(4)PC [knowledge that act is so

imminently dangerous that it must in all probability cause death]

10. Mack went around slapping and punching people. The police were called to

the scene and they tried to reason with Mack first to ask him to stop what he

was doing. However, Mack would not listen to them. Mack said something

about himself being on a secret mission and that the whole world depends on

him. When the police tried to arrest him, he started attacking the policemen

too causing serious injury to some of them. When they finally overpowered

him, Mack was heard shouting ‘What have I done wrong? Why are these

Imperial Stormtroopers holding on to me?’

a. What offence could Mack be charged with?

- Battery

- Assault with intent to resist arrest

Possible defences

- Insanity

- McNaughten

- Elements:

● Defect of reason

➔ D must be deprived permanently of the ability to

reason

● Disease of the mind - internal cause not external cause

 ➔ Defect of reason must be a result of disease of the

mind

● Does not know the nature and quality of the act OR does

not know that it was wrong

➔ Windle – D needs to know that his conduct was

legally wrong

- Drunk: depends on voluntary or involuntary

Malaysian

- Basic intent

- Voluntary

- Intoxication [if voluntary cannot raise defence for intoxication]

b. How would your answer differ if Mack was found to be drunk instead of

legally insane?

- Intoxication

● Voluntary

● Involuntary

● Mack must have been so intoxicated for him to form the

MR for the offence