Criminal law Affirmative Defences: Defences of Reasonable Reaction Lecture transcript Prof William Wilson Affirmative defences. Defences such as insanity, automatism and mistake allow the defendant to escape liability on the ground that one of the elements of the offence is absent. So insanity or intoxicationinvolve the claim that because of the defendant's condition he or she did not form the mens rea necessary for liability. Affirmative defences do not operate like this. They do notdeny that the offence definition is satisfied. Rather, they involve the claim that the defendant had reason for infringing the prohibition. That reason might be an excuse, such as duress, or a justificationsuch as elf defence. An excuse concedes the fact that the defendant has done wrong butdenies that the defendant was to blame for what they have done. Soduress amounts to the chim ‘Don’t blame me, I'm only human A justification by contrast denies wrongdoing A person acting in self defence needs no excuse for his action. The criminal law permitscitizens to defend themselves against a wrongfulattack. Their reaction isa lawful response, ‘The three affirmative defences which will be examined in this lecture are duress, necessity and self defence. It isimportant to be able to distinguish these defences because on the face of it they havea lotin common -and it iseasy fora student faced with a problem question involving one of these defences to run thewrong defence. In slide 2 we can see what they have in common. Each of the defences involve the claim that the defendant acted reasonably and proportionately in breachinga criminal prohibition to prevent an immediate or imminent threat of harm. So we have seen what they have in common. On slide three we can see how they differ. Let us assume that thefollowing scenario occurs. X threatens Dwith death unless D helps him to attack \V, who is standing nearby. Given that the basis of each of the defences is acting reasonably and proportionately to avoid the threat of harm, when wouldduress be the appropriate defence to run? The answer is when D does as commanded. So D beats up V in order to avoid his own death. His excuse is ‘Don't blame me. I'm onlyhuman. You would have the same.’ But, of course, D mighthave acted more heroically while still seeking to avoid theharm. For example. Instead of complying with X's commands and attacking V, he attacks X in order to disarm him. Here he will raise the defence ofself defence, which allows people to defend others from attackas well as themselves. What about necessity? When wouldthisbe the rightdefence to run? Here is an ‘example. Instead of attacking in defence of V, or complyingwith X's demand, D pushes V into an adjacent riverin order to save V from X’sthreat. This, of course, would be an assaultagainst V unless D can raise a defence. But what isthe defence? It is not duress because D does not do as commanded. It snot self defence because the force used is directed against V not X. The defence raised isnecessity, the basis of which is the claim that D acted reasonably in the use of force on an innocent person since it was the lesser of two evils. The first affirmative defence we shall consideris duress. In other words D claims he was forced or coerced into committing the offence. Theessence of this defence is that D has acted as reasonably as could be expected of an ordinary human being, in breaching a criminal prohibition. February 2018 Page of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction As the statement of Lord Lane CJ in the case of Graham indicates, itis only ifsober people of reasonable courage might have responded as the accused did, can the accused rely on duress. In other words duress affords NO licence forcowards or for drunkards. Duress takes two forms. The firstis the standard form. This is known as duress bythreats, It occurs, where a wrongdoer nominates a crime for D to commit. In simple language duress bythreats is. the defence to run where a wrongdoer commands'D todo this or else. So ifX commands D to rob a bank under threat of death, this isan example of duress by threats. The second form of duress isa variation on the first. Itis known as duress of circumstances. Here the threat which D faces isnot that of a wrongdoerbut derives from external circumstances. To escape this peril D commits a crime of his own choosing, for example D exceeds the speed limit in his carin order to escape a runaway lorry which is about to crash intohim. Anextremeexample occurred in Abdul Hussain. The defendantshijacked an airplanein order to escape deportation to lraqwhere they were underimminent threat of torture and death. Their defence was duress of circumstances. The Court of Appeal held that the defence of duress of circumstances was available. The case illustrates how duress can be claimed wherevera person acts reasonablyin breaching a prohibition if he does so to escape an imminent peril, even iftthe threat does not derive from the command of awrongdoer. The leading case of Hasan lays down the basic elements of duress. In the following slides these elements will be described and the case law examined, These apply to both duress by threats and duress of circumstances. The first element is that there must be a threatof death or serious injury. Anything less than this, for example a threat of exposing the defendant's homosexuality, as happened in Valderama Vega, is not enough. Even a threat of severepain is not enough unless it amountsto serious injury. This ‘was made clearin Quayle, in which duress of circumstances was raised in answer to a charge under the Misuse of Drugs Act. The defendant claimed he was forced to consume cannabis to combat severe neurological pain following a leg amputation which was not relieved by standard pain Killers. The Court of Appeal rejected this defence, upholding the defendant's conviction since he ‘was seeking to avoid pain not serious harm, Another case in which the defence failed was Dao. The appellants were convicted of cultivating cannabisand possessing criminal property. Onappeal they pleaded that they were victims of trafficking and were being falsely imprisoned at their place of work. They claimed they had no choice but to do as commanded. The Court of Appeal said that a threat of false imprisonment, without an accompanying threat of death or serious injury, was insufficient. One qualification to the death or serious injury restriction was madein Regina v A in which the Court of Appeal said obiter that a threat of rape would besufficient to ground the defence. ‘The second element in the defence is that the defendant's participation in the crime must be due to the threat, ratherthan for some other reason. In Valderama Vega, covered at slide 6, the Court of Appeal ruled that while blackmail alone could not ground the defence, V could rely on duress if the blackmail threats were accompanied by death threats to the defendant or his family, and those death threats were at least part of the reason why he acted as he did. The third element of duress appears at Slide. A number of fairly recent cases have confirmed that the defenceof duress does notrequire the threat of death or serious injury to be posedto the defendant himself. Itis enough that the objects of the threat are members of the defendant's, family or close circleas in Ortiz, or even a stranger, so long as thestranger was someone for whose safety D would reasonably regard himself as responsible. So in Regina vl, the defence of duress of circumstances was available to a defendant who hired an unlicensed security firm in Page2of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction breach of the law, asa protection against possible terroristattacks at his shop, which would have endangered both shoppers and nearbyppedestrians. The Court of Appeal ruled that such people ‘werewithin the class of people for whose safety D would reasonably regard himsef as responsible. By contrast, In Shayler the defendant the defence failed of duress of circumstances failed in answer toa charge under the Official Secrets Act Shayler had disclosed secret information about the secret services in a book. He claimed that the disclosurewas done to protect members of the secret service from assassination. The Court of Appeal ruled, inter alia, that members of the secret service werenota class of people for whose safety Shayler would reasonablyregard himself as responsible. ‘The fourth element in duress appears at Slide9. The defence isnotavailable if the defendant had no good reason for reaching the conclusion that there was an imminent threat of death or serious injury. In simple terms it is not enough that A thinks Mr. B means to kill or cause GBH. This belief must reasonably entertained. Soin Regina v A, A committed perjury in a criminal prosecution brought against her husband. She did so in the belief that herhusband would kill her if she testified against him. This fear was real but not based on reasonable grounds since he had madeno threatensto her prior to the trial. The Court of Appeal upheld her conviction and rejected her defence of duress. In Shayler, dealt with at slide 8, another ground forthe rejection of the defence of duress of circumstances was that the defendant did not have good cause to believe that members of the secret services were in danger if he did not speak out. ‘The fifth element appears at slide 10. It is not enough that D has good causeto believe that there is a threat of death or serious injury. It must still be reasonable to commit the offence. In other words a balance must be struck between the threat posed to the defendant and the crime he must committo avoid that threat. So, although D is faced with a threat of death or serious injury, it may still be necessary for him to do his legal duty. Consider, for example, a defendant who is threatened with serious injury if he does not commit a rapeona child. Such a defendant will not necessarily be able to rely on the defence if the jury consider that, notwithstanding this threat, a reasonable person of ordinary courage would not have responded in the same way. Let'sconsider further the substance of Slide 10. Itincludes a requirement that people under duress should display a level of courage appropriate for an ordinary person sharing the defendant's characteristics What characteristics are we talking about? On a simple level ordinary people who are old and/or frail can be expected to have lower standards of fortitude than those who are young, healthy and vigorous. A pregnantwoman can be expected to bemore susceptible to threats than other people. A person who is blind or disabled can be expected to be more vulnerable to a threat than those who are not since the threat is less easy to combat. In Emerythe defendant was convicted of cruelty for failing to protect her child from violence by her partner. She gave evidence that she herself had suffered from prolonged physical abuse at his hands and felt powerless to intervene. This a recognised condition known asleared helplessness. The Court of Appeal ruled that thiswas one of the characteristics which should be taken into account in deciding whether her response was that of areasonable person of ordinary courage. Afterall, reasonablepeople can find themselves with abusive, controlling partners. similar result occurred in Sewellwhere the defendant was suffering from post traumatic stress syndrome after being raped. The Court ruled that she could rely on this condition to explain why, asa reasonable person of ordinary courage, she had succumbed to the threat Page3 of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction Continuing with this element. These two cases should be contrasted with that of Hegarty. In this. casethe defendant pleaded duress to a charge of robbery and possession of a firearm. He claimed that he had been threatened with violence against his family if he refused. In support of his plea he sought to adduce medical evidence to the effect that he was emotionally unstable and in a ‘grossly elevated neurotic state’ to explain why he succumbed to the threat. The judge refused to admit the evidence and the jury convicted. The Court of Appeal dismissed the appeal.Areasonable person of ordinary courageis by definition not someone who lacks the required standards of courage-and it makesno difference that this weakness results from mental illness. You might wish to consider further how Hegarty can be reconciled with Emery and Sewell. If you are stumped, look at yourtextbook at chapter 10.4.C2. le 13 deals with the sixth element in duress. The essence of duress is that the defendant had no reasonable choice but to break the law. It follows that the threat must be animmediate one. Otherwise the defendant will be left with a reasonable choice, namely to seek police protection. This explains the de Gill Here, the defendant was commanded to steal his employer's lorry and was threatened with serious injury if he failed to do so. The Court of Appeal ruled that defence wasnotavailable becauseafter the threat had been made there was enough time available for him to go to the police. Compare Hudson and Taylor. The defendants were teenage girls who committed perjuryin a trial involving the prosecution of agang of criminals. A gang member had earlier threatened to ‘cut them up if they did not do so. They pleaded duress. The trial judge refused toallow the defence, since while in court they had ample opportunity to seek police protection. Nevertheless the Court of Appeal allowed the appeal, agreeing with the defence that seeking police protection was not alwaysreasonably to be expected. ‘The House of Lords in Hasan has nowabandoned this relaxed approach to the requirement of immediacy in duress. Lord Bingham, disapproved Hudson and Taylor. He ruled that the defence was notavailable unless the defendant reasonably apprehended immediate or almost immediate death or serious injury for failure to comply. If this were not the case the defendant would be expected to take evasive action. ‘The next element of duress appears at Slide 14. Duress, like most other defences, is not available if the defendant wasat fault in rendering himself susceptible to coercion. Being intoxicated at the time offence does not help the defence. In Graham D2 coerced D1, who was his homosexual lover, into killing D1's wifeby strangling her with an electric flex. Both D1 and D2 wereintoxicated when they did this. D1 tried to rely on this intoxication to explain why he had succumbed to the pressure put on him by D2. The trial judge refused to allow this evidence to go to the jury. The Court of Appeal agreed, ruling that the jury should be told to ignore the fact that D1 may have been intoxicated in deciding whether his view of events, and hisaction were reasonable. The reasonable person of ordinary courage is by definition sober The doctrine of prior faultalso denies the defence to those who voluntarily place themselves at Tisk of coercion This was made clear in Sharpe. The defendant joined a criminal gang. He later participated in a robbery on a post office, in which asub-postmasterwas killed. His defence to manslaughter was duress. He claimed that he had undertaken the robbery only because he had a gunto his head. The defence was ejected upon the basis that he voluntarilyjoined the gang, knowing that coercion might laterbe usedon him to commit an offence, Page 4 of11Video transcript: Affirmative Defences: Defences of Reasonable Reaction This rule applies equally where the defendant runs the risk of coercion outsidea criminal gang. In Heath, a drug user was coerced into supplying a class B drug by his supplier who he had not paid. His defence of duress failed on the basis that he knew the risks of mixing withdrug dealers. In Hasan the House of Lords went further, ruling that it was not actually necessary for Dto foresee the risk that coercion may be used. It was enough that he/she oughtto have foreseen this risk. Until fairly recently duress could be raised as a defence toall crimes, including murder. In Howe the position changed. Howewas a member of a gang that tortured and strangleda man. On asecond occasion, Howe himself strangled the victim. He claimed to have acted out of fear of the gangleader who ruled the group through intimidation and threats. The House of Lords, upholding the conviction, confirmed the rule in Lynch, that duress was not available for murder even where the defendant was only an accomplice. This restriction can be unjust. This is evident fromLynch. Thedefendant’s participation in the murder was limited to driving the principals to the murderlocation, Hedid so because the principals were members of a terroristorganisation and he knew that ifhe did not drive the car he would be killed. In the later case of Gotts the Court of Appeal withdrew duress as a defence toattempted murder. ‘The defendant was a youth of 17 who stabbed his mother several times in an attempt to kill her. He alleged that his father commanded him to do so and threatened to kill him if he did not. The Court of Appeal Heldthat since duressis not a defence tomurder it would be illogical to allow it forattempted murder given that the fault elementis the intention to kill. This suggests that in the future the defence may be withdrawn from the section 18 offence, which alsohas the same fault element as murder. ‘We move now to the defence of necessity. Necessity has muchin common with duress. Indeed duress of circumstancesis necessity in its excuse form. The essence of the defence is that taking into account the contextin which the defendant found themselves, committing the offence was thelesser of two evils. Itis only recently that necessity has been recognised. The common law’straditional approachis, encapsulated in the famous case of R v Dudley and Stephensin which, following a shipwreck, the ‘two defendant sailors killed and ate the cabin boy, after several days adrift in an open boat with 1no food or drinkto sustain them. They were later rescued and charged with murder. Their defence wasnecessity, amounting to the claim that it was better for one person to die than three. The Queen's Bench Divisional Court rejected the defence. Lord Coleridge explains why at slide 17. In short, necessity is not a defence recognised at law capable of excusing the killing of an innocent person. Although Dudley and Stephens was authority only for the non availability of necessity to murder, forthe next century it was taken as authority for the much wider proposition that acting under necessity was a defence tono crime, unless the necessity could be brought within the confines of duress orself defence. The mere fact that committing the offence was objectively the lesser of two evils wasnot sufficient. There are two basic reasons for its non acceptance in domestic law. Both of theseare implicit in the reasoning of Dudley and Stephens. The firsts that to allow such a defence would create the potential for individual rights to be overridden by collective interests. For example a general lesser of two evils defence would render it lawful to force a person into having a blood transfusion so long as the benefit outweighed the detriment. PageS of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction ‘The second reason is thatallowing the defence would be a threat to the rule of law because it would substitute the criminal law's assessment of what the law demands with that of the individual. For example, in Southwark v Williams necessity was held not to be a defence to trespass when the defendants sought to justify squattingin empty accommodation by relying on theirhomelessness. Lord Denning in this case emphasised the threat to therule of law, and to the rights of individuals Which would result from allowing the defence to succeed. His reasoning appears above and is well worth remembering. In Buckoke v GLC Lord Denning went further, stating that even where individual rights were not compromised the defence would not be available because of the remaining threat to the rule of law. He stated that necessity wasnotan accepted defence, and could not, therefore, avail even the driver of a fire enginewho jumped a traffic light to combat a blaze, although such conduct would properly be considered praiseworthy. The rule of law argument in itsessenceis that individuals should not be allowed to substitute the law's view of what is necessary with their own, else anarchy will prevail Other common law countries were moreopenin their attitude towards the defence. In thekey case of Perka v The Queenthe Canadian Supreme Court Canada ruled that necessity was a defence known to the common law which would render otherwise unlawful action lawful. Continuing with Perka. The case tellsus that necessity can operateeither as an excuse ora justification Necessity operates as an excuse where the defendant acted reasonably and proportionately to avoid an imminent peril. This is what we now term duress of circumstances. It operates as a justificationif, from society's perspective, breachinga criminal prohibition produces a greater good than compliance. This is necessity properly so called. In 1986 necessity was finally accepted into domestic law, in its excuse form of duress of circumstances. The courts tend to use these termsinterchangeably. In the leading case of Conway D was convicted of reckless driving after he had driven away from pursuing police officers in his, car. He did so because he believed the police officers were in fact criminals set on killing his passenger. D's defence of necessity, based upon the urgency of the supposed threat, wasnot put to the jury by the tral judge. D's appeal was allowed. In so doing the Court of Appeal extended the scope of duress to include cases where the threat came fromexternal circumstances rather than the actions of a wrongdoer. The defence was available so long as he reasonably believed that drivingas he did was necessary to avoid death or serious bodily injury to himself or his passenger. When you have finished the lecture you might wish to consider why D presented his case in Conway as one of necessity rather than self defence. In MartinD drove his stepson, who had overslept, to work D was disqualified from drivingat the time. His defence wasnecessity. He alleged that he feared his son would lose his job which’ would cause wife to commit suicide. The trial judge refused to allow the defence to go to the jury. ‘The jury convicted. The Court of Appeal ruled that the defence of "duress of circumstances" should have been put to the jury. The defence of necessity in its excuse form of duress of circumstances was also used successfully in Regina vS and L dealt with at slide 8. Page6 of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction In Martin Mr Justice Simon Brown laid down the elements of duress of circumstances in terms identical to its sister defence of duress by threats. This new form of duress, known as duress of circumstances, is the main form of necessity operating in domestic law. ‘The elements of this defence are to be found at slide 23. Please take note of this statement and learn it. To repeat, neces ‘excuse form is e also known as duress of circumstances. Its of the essence of the excuse that D acts reasonably and proportionately in a crisis to avoid the threat of death or serious injury to himself or another. Itis this special context of crisis, where the defendant metaphorically has no choice but to break the law, which generates the defence. By contrast, necessity in itsjustificatory form requiresno such crisis. All that isnecessaryis that D is acting for the best in other words he/she is acting for the common good. It may be that there is a crisisbut this is not of the essence of the defence. This was made clear in the first case in which necessity in its ustificatory form was accepted. In Re Fan adult woman with severe learning difficulties was a voluntary patient at a mental hospital. She began a sexual relationship with a fellow patient. There was ariskthat she would become pregnantand, because of her mental disability, she would be unableto cope. Hermother and the hospital authority wantedher to be sterilised. However, because of her mental incapacity she was incapableof giving consent. As a result, the sterilisation would beunlawful unless the operation could bejustifiedon the ground of necessity. The House of Lords ruled that the sterilisation would be lawful. There wasno requirement that the patient was under threat of death or serious injury. Itwas enough that the operation was in herbest interests. Re F was followed in Bournewood (1998) and in a number of other cases where surgerywas undertaken where the patient wasincapableof giving consent due to accident, trauma or inherent causes. ‘The Courts have, on occasions, allowed this defence to operate as a justification outside the field of medical treatment involving the patient's best interests. In Pommell, for example, the defendant appealed against his conviction for possessing a loaded shotgun He had wished toadvancea defence to the effect that on the previous eveninghe had taken it ‘off someone who he thought was going to do some damage with it’ in order to stop him. The Court of Appeal quashed his conviction, holding that the duress of circumstances defence should have been left to the jury. A problem with this case é that, although the Court of Appeal said that the defence raised was one of duress of circumstances it clearly was not since that defence requires animmediate threat of death or serious injury and here there was none. In other words, thismust have beena case of its justificatory form. Consider also Pipev DPPwhere D had been caught speeding at over 100 mph while rushing his, child who had abroken leg to hospital. His defence of necessity was rejected by the magistrates on the ground that there was no mortal threat to the child. D’s appeal was successful. Mr Justice Owen held that the defence of necessity was potentially available on such facts, and wasnot. confined (as the justices had supposed) to cases in which there was alife-threatening situation, Mr Justice Owen was not sure that the circumstances of this case actually justified such fast driving, but he could not be sure what conclusion the justices would have reached had theyproperly considered the available defence. Necessity in itsexcuse form of duress of circumstances is not available to murder or attempted murder. In itsjustficatory form these restrictions donot apply. InRe A (conjoined) twins) the Court of Appeal had to decide whether the separating of conjoined twins could be legally justified on grounds of necessity although the inevitable consequence would be thedeath of one of the twins, named Mary. Ifitcould not be justified the surgeons would be guilty of murder if they effected the Page7 of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction separation. The dilemma for the Courtwas that the separation was obviously not in the best interests of Mary andyet if the separation did not occur soon, both Mary and the other twin, named Jodie, would certainly die. Holding that the separation would be lawful, Brooke LJ, rejected self-defenceas the justification because Mary was not unlawfully threatening Jodie's life. He concluded that necessity, rather than duress of circumstances, would apply because the doctor's will was not being overwhelmedby the threat. Instead, the doctors were making a rational choice to adopt the lesser of two evils, that is, the death ofone rather than the death of both twins. Given the conflict of the children’s interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative". Central to the decision was the fact that Mary's death would be by way of ide effect of what would otherwise be a quite justified medical procedure. Mary was not being used as a means to an end. ‘We move now to thefinal set of defences ofreasonable reaction. The best known of these isself defence. The essence of these defences is that is lawful to use reasonable force to achieve certain defensive purposes. The law for each of these defences is the same. The four purposes or which itis lawfulto use reasonable force, are: 1. defending oneselfagainst an unlawful attack, 2. defending another personagainst an unlawful attack, 3. defending ones property or that of another against an unlawful attack, 4, Oracting to preventaa crime or arrest a suspected offender. So, a decision made on what counts as reasonable force for the purpose of self defenceis a decision applicable to what counts as reasonable force for preventing the commission of an offence or any of theother2 purposes The basic principle governing the four defences is provided by s. 3 Criminal Law Act 1967 which states thata person may use such force as is easonablein the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders, or suspected offenders, or of persons unlawfully at large. As | have explained this principle applies equally to cases of self defence, defence of others or property Section 76 of the Criminal Justice and Immigration Act 2008 enshrines the case law governing cases involving the use of force in public or private defence. It consolidates anumber of common law principles. The firstis that the question whether the degree of force used by D was reasonable in the circumstancesis to be decided by reference to the circumstancesas D believed them to be. ‘The effects of section 76(3) can be found at slide 31. Essentially these mean that a person can rely on self defence or one of the related defences even though they are mistaken about the facts and so theneed to use force. So in Beckford v R (1988), the defendant police officer shot dead a suspect, because he had been told that the suspect was armed and dangerous, and so feared for his own life. The prosecution case was that the victim had been unarmed nd thus presented no threatto the defendant. The Privy Council held that, despite this mistake, the defendant was entitled to the defence. What was Page of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction important was that he believed in facts which, if true, made the use of force necessary, not that forcewasnecessary. The mistake does not have to be a reasonable mistake so long asit’s an honest one. So In Williams the defence wasavailable to a defendant who honestly but unreasonably believed that the police officer he attacked washimself unlawfully attacking a third party. ‘There is one qualification to this, namely where the mistake made is due to an insane delu Suppose you have a psychotic delusion that you are being attacked by evil spirits (who are in fact. police officers) and you respond by violently lashing out. Can you rely onself defense? This was the question facing the Court of Appeal in the unusual case of R v Oye, The Court of Appeal ruled that in such a circumstance, although the defendant should properly be acquitted, it should be on the ground of insanity not self defence. Section 76(3) also limits the level of force which can be used. The essence ofall affirmative defences is that the defendant's reaction to the threat of harm was a reasonableone. It follows that the force used for self defence or one of the other purposes must first of all be necessary in the particular context. In Field (1972), the Court of Appeal had to consider whether it was reasonableto use force, where the person threatened had the opportunity of retreating, In this case D was told that V was coming round to attack him. D remained where he was and, in repelling V's attack, killed him. The prosecution case was that D’s use of force was unreasonable since he had the opportunity to retreat and seek police protection. in other words the killing was unnecessary. The Court of Appeal rejected this argument and allowed the defence. A person faced with an unlawful threat has no duty to retreat. You may remember that for duress the defendant cannot rely on the defence if he/she had the opportunity to takeevasive action. This is notthe case for self defence. Can you think why? For the use of force to be necessary the threat to which D is subject must be an unjust threat. So using force to resist an arrest oneknowsto be lawful is not permissible, noris it permissible to use force to overcome the defensive action of a third party where this action is madenecessary by the defendant's own initial aggre: So if Victor finds David trespassing on Victor's land and uses reasonable force toeject David from the land, David cannot lawfully use force to defend himselfagainst that ejection. However, there isno rule of law which disentitlesthe use of force in self defence simply because the defendant was the initial aggressor. As Harvey makes clear, if Victoroverreacts to David's own unjustified action David is entitled to defend himselfagainst the overreaction. Just because it isnecessaryto use force to defend oneself, prevent a crime, or make an arrest does notmean that one can do anything to serve that purpose. The degree of force used must reasonable Section 76(6) of the Criminal Justice and Immigration Act 2008 also encapsulates the case law in defining ‘reasonable force’ as force proportionate to the threat offered. If the force used is disproportionate it is automatically unreasonable However, section 76 (7) (a) makes clear that in deciding whether a defendant's use of forcewas disproportionate the jury must put themselves in the defendant's shoes. They must be sensitive to the fact that In theheat of the moment, the defendant's judgement may understandably part company with the judgement of someone who is looking at things from theoutside, and insulated from the stress such a situation generates. Page9 of 11Video transcript: Affirmative Defences: Defences of Reasonable Reaction In other words, under conditions of stress, reasonable people may misjudge how much force the occasion demands. The jury should therefore be sensitive to what the defendant thought necessary because of the pressure of the situation. As Lord Morris said in Palmer “Detached reflection cannot be expected in the face of an uplifted knife” As section 76 (7) (b) makes clear, however, ultimately, it is what is reasonablethat counts, not what the defendant thought was reasonable. But obviously what the defendant thought was reasonablewill be an important starting pointfor the jury's decision as to whether itwasa reasonable response, as the defendantwas there. The jury wasnot. Slide 36 summarises what section 76 is al about so please pay particular attentionto this slide. Also pay attention to some of the key cases which emphasise that the test of reasonableness is an objective test, which while sensitiveto the context the defendant was in, still demands that the defendant satisfy the requirement of reasonableness of reaction. In Rv Martin, D shot dead a burglar who was trying toescape. The Court of Appeal, upholding D's conviction, restated the rule that the question as to how much force is lawful is a question of lawand is an objective question. D's honest assessment of the degree of force necessary was not decisive. The Court of Appeal agreed with the trial judge that to shoot a burglar who was retreating couldnotbe objectively reasonable, howeverscared the shooter may have been In Yaman alocksmith was employed by bailifs to enter D's premises. When D saw the locksmith trying to gain entrance to his premises he hit him over the head with a hammer, fracturing his skull D, raised the defence of defence of property in answer to a charge of wounding with intent. He alleged that he thought the locksmith was a burglar. The jury rejected the defence and convicted, The Court of Appeal ruled that the fact D had ‘donewhat he honestly and instinctively thought wasnecessary to resist a supposed burglary, wasnotenough. The jury must still consider whether, the force he used was proportionate The Court of Appeal agreed that hitting an unarmed burglar over the head with ahammer was disproportionate and so the defendant’s conviction was upheld. A slight amendment to section 76 has recently been effected by Section43 of the Crime and Courts Act 2013 which adds anew subs.(5A) to s.76 of the 2008 Act. Itaffects householders under threat in their home. In the words of the Ministry of Justice Subs.(5A) affordshouseholders ‘greater latitudein terrifying or extreme situations where they may not be thinking clearly about the precise level of force that is necessary to deal with the threat faced.’ Subsection 5A provides that in a householder case, the degree of force used by Dis not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances." Does this mean that anything less than ‘agrossly disproportionate response” is automatically a reasonable response? This emphasises the point made earlier, that under conditions of extreme stress, people cannot be expected to act judiciously. It indicates that when a person's home isinvaded they maystill be acting reasonably despite the fact that their response appears to be disproportionate In R v Collins (2016) the High Court said no. Mr Justice Cranston interpreted the new section SA 76 as a clarification rather than a change of the law. Reasonableness is still the test. Section 5A simply underlines the fact that a grossly disproportionate use of force was automatically unreasonable. But tit does not follow that disproportionate force falling short of grossly disproportionate automatically reasonable. Whether disproportionate force falling short of grossly disproportionate was reasonable or notwas a matter for the jury taking into account the particular context of a Person facing anintruderin their ownhome. Page 100f11Video transcript: Affirmative Defences: Defences of Reasonable Reaction This interpretation was approved by the Court of Appeal inRayin 2017. You should remember that self defence and its related defences, unlike duress, can be used as a defence even tomurder. Of course a killing is more likely to be held adisproportionate use of force but itis quite clearthat a person faced with a threat of death, serious injury or rape may use the defence even in answer to a charge of murder. Until 2009 self defence was anall or nothing defence. Either the use of force waslawful or twas not. There was nomidway point. For example, in Clegg, the defendant, fearing for the safety of his fellow soldiers, shot dead a passenger in a car which had broken througha road block. This was clearly disproportionate force, given the occupants of the car posed no immediate lethal threat, butone of the questions for the House of Lords was whether the fact that he was acting in self defence, albeit using disproportionateforce, meant that he was guilty only of manslaughter rather than murder. ‘The House of Lords rejected this argumentand upheld his conviction for murder. The effect of 5.55 of the Coroners and Justice Act 2009 means that in such a case of disproportionate force in self defence the defendant can now raise the defence ofloss of control in answer to a charge of murder, provided that this was prompted by a fear of serious violence from V against D or another identified person. For the elements of this defence see Wilson 13.5and Study Guide 7.3.2 and 3. The four defences we are considering justify crimes involving the use offorce. It cannot be rased crimesnot involving the use of force for examplettheff, fraud, and driving offences. So a person ‘who breaks the speed limit in order to escape perilhas no defence of self defencein answer toa charge of speeding or dangerous driving. Such a personwould have to rely on the defence of duress of circumstances, as occurred in Conway. Thisis nota simply theoretical distinction. Duress of circumstances is a more difficult defence to raise successfully as itis available only where the threat is of death or serious injury. It was this requirement of force’ which disentitled the defendant in Blakefrom relying on defence of othersin answer to a charge of criminal damage. He had written a notice warning of the perils of the Gulf War, on a concrete pillar but since graffiti does not involve the use of force this defence was disallowed. By contrast i the criminal damage doesinvolve force as where the defendant cuts a criminal'sbrake cables to prevent their escape, the defence of prevention of crimeor arresting an offender could be raised. In Renouffit was held that forcing a car off the road for the purpose of arresting the driver was capable of amounting to the use of reasonable force within the meaning of s 3(1) and didnot amount to reckless driving. This was followed recently in Riddell where the defender nudged an attacker with hercarin order toescape. In Cousins the Court of Appeal ruled that issuing athreat to kill,to dissuade someone fromattacking, was a use of force, as it was a precursor to force. A similar decision was made in Attorney Generals Reference (No 3) of 1983, where the offence charged was possessing an explosive substance. The defendant had madepetrol bombs, "to use a last, resort to keep looters away from hisshop’. The Court ruled that this was justified as a precursorto the use of force in defence of his property. Slide 41 to 45 summarises some of the main differences between the defences. These should be learned and understood. That is the end of the lecture. Page11 of 11