DEFENCES

AFFIRMATIVE DEFENCES

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 1

AFFIRMATIVE DEFENCES

• These defences negate the liability, although all the definitional elements of the crime are present.
• The claim over here is that the action undertaken by the defendant is reasonably necessary to avoid the
unjust threat of harm.
• Duress
• Necessity
• Self-defence

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 2

DURESS

• The claim is that it is unfair to expect a person to sacrifice themselves or a person for whom they are
responsible, for the sake of conformity to the law, even where this involves victimization of another
innocent person.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 3

NECESSITY

• The claim over here is that it advances social purpose, where the person breaks the law to prevent an
occurrence of a greater evil.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 4

SELF-DEFENCE

• The claim here is that the person is just in acting in order to prevent a launch of an unjust attack on
him/her.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 5

 DURESS

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 6

DURESS

• Threats of death or serious personal violence so great as to overbear the ordinary power of human
resistance should be accepted as a personal justification for acts, which otherwise would be criminal.
• The defendant must act as to avert an unjust threat of serious injury or death to him/herself or another.
It is not enough simply to entertain a rational desire to escape from a difficult or impossible situation.
• Baker 1997 – the threat must be of physical harm. Acting to allay psychological harm is not enough.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 7

• The defence of duress in criminal law is different from all other forms of duress. In other forms of
duress for example in contract law or tort law, duress is considered where there is an absence of
consent. However in criminal law as for affirmative defences, the free choice is deemed absent only
where the harm threatened was so great as to leave the defendant with effectively no other option.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 8

• Quayle 2004
• Lynch v. DPP for Nothern Ireland 1975
• Dao 2012 – threat of violence of death was necessary
• Regina v. A – obiter ‘a threat of rape could ground threat of duress.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 9

THREATS AGAINST THIRD PARTIES

• It is probable that the defence is available where the threat is directed at the person other than the one
who is accused.
• Hurley v. Murray – the Supreme Court of Victoria held that duress is viable defence, where the threat is
to the partner of the accused.
• Ortiz – The CoA assumed that the defence would be available to the accused, where the threat was
directed at his wife or his family.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 10

• There is an obvious reason why the defence is allowed where the person is related to the accused, the
person related has an emotional affinity which is put to the test.
• However the situation with complete strangers is rather less clear.
• Hasan (2005) – the HoL stated in the obiter that it would extend to cover the threats directed against ‘ a
person whose safety the defendant would reasonably regard himself as responsible’

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 11

• In the case of Shayler the CoA dismissed the defence of a security official. The security official pleaded
that it was necessary to reveal the official secrets because otherwise it would lead to loss of life or limb
or other security personnel. The court rejected the argument because it was thought that the
defendant failed to pinpoint the exact person to whom the threat was directed.
• Lord Woolf limited the application of the defence to circumstances where ‘ a defendant commits an
otherwise criminal act to avoid an imminent peril or danger or serious harm to himself or towards
someone for whom he reasonably regards himself to be responsible.’

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 12

• He not only included the people who are closer to the accused but also situation in which he is placed
where he is asked to make a choice to act or not act to avoid the individuals being injured.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 13

TEST

• The for the test for the defence of duress were elaborated in the case of Graham (1982), where it was
held that although the defence is personalized defence, as such because it contains subjective
elements. It is also a claim to be free of moral blame which requires, amongst other things, minimum
standards of fortitude to be satisfied.
• The test devised asks two questions:

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 14

TWO QUESTIONS

1. Was the defendant, or may have been, impelled to act as he did because, as a result of what he
reasonably believed the coercer has said or done, he has a good cause to fear that if he did not act
the coercer would kill him or cause him serious physical injury?
2. If so, have the prosecution made the jury sure that a sober person of reasonable fairness, sharing the
characteristics of the defendant, would not have responded to what he reasonably believed that
coercer said or did by taking part in the offence?

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 15

QUESTION 1

• The jury must consider whether the defendant’s action in the crime was or may have been due to
threat. If it were not, the defence would not be available even if the threat was objectively sufficiently
coercive.
• Graham says that the defence is not application if the threat is not reasonably entertained.
• Further if the defence was reasonable entertained it would still fail if the threat did not give the accused
a good cause to fear for his life or serious injury.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 16

QUESTION 2

• The second limb requires the answer that acting in such a way was objectively reasonable, even if
allowing for a fact that threat was reasonably entertained.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 17

 AFFIRMATIVE DEFENCES

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 18

AFFIRMATIVE DEFENCES

• By contrast with failure of proof defences. Affirmative defences

operate outside the elements of the offences.
• The moral core of these defences is that the particular context
within which the defendant was acting rendered their actions
permissible or excusable, although contrary to criminal
prohibition.
• In essence they adduce to the claim that the defendant acted
reasonably or as reasonably as could be expected in the given
situation.
Jehanzeb Jehangiri The Institute of Legal Studies Lahore 19
PUBLIC AND PRIVATE DEFENCE INCLUDING SELF
DEFENCE

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 20

THE CRIMINAL LAW PERMITS THE USE OF REASONABLE FORCE
FOR THE PURPOSE OF PUBLIC OR PRIVATE DEFENCE.

• Section 3(1) of the Criminal Law Act

provides the basic template for both public
and private defence:
• A person may use such force as is reasonable in the
circumstances in the prevention of crime, or in
effecting or assisting in the lawful arrest of offenders
or suspected offenders or persons unlawfully at large.
Jehanzeb Jehangiri The Institute of Legal Studies Lahore 21
• Private defence which is a subset of public defence similarly permits the use of reasonable force in self
defence, defence of another or defence of property.
• To constitute a defensive force, D must be acting defensively ( that is he must not be acting in
retaliation or revenge) and the force must directed against the person who is posing a threat.
• Therefore it is not available to a person who is resisting a lawful arrest, because lawful arrest is not a
threat. It is not used to justify threat against a person such as:
• The sacrificed twin in Re A – for this the defence is defence of necessity.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 22

THE CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 HAD PUT SOME KEY
COMMON LAW ISSUES ON STATUTORY POSITION TO ENSURE CLARITY AND
CONSISTENCY OF APPROACH

• They include the restatement of the rule that whether or not the use of force is lawful, it
depends not on whether it was in fact necessary but whether the defendant honestly
believed it to be necessary.
• They also include guidelines to judge whether the use of force was reasonable or not.
• They enunciate the principles which were established in the case of Beckford.
• In this case the Privy Council on Appeal from Jamaica – that test of self defence was that a person
might use such force as was reasonable in the circumstances as the person honestly believed them
to be, in the defence of himself and another.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 23

THE PRINCIPLE OF BECKFORD WAS ENSHRINED S.76 OF THE CRIMINAL JUSTICE AND
THE IMMIGRATION ACT 2008 AS AMENDED BY THE CRIME AND COURTS ACT
SECTION 43, WHICH APPLIES TO ALL CASES INVOLVING THE USE OF FORCE IN PUBLIC
OR PRIVATE DEFENCE.
• (3) - The question whether the degree of force used by D was reasonable in the circumstances is to be
decided by reference to the circumstances as D believed them to be.
• (4) If D claims to have held a particular belief as regards the existence of any circumstances—
• (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
• (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3),
whether or not—
• (i) it was mistaken, or
• (ii) (if it was mistaken) the mistake was a reasonable one to have made.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 24

• (5) – but subjection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication
that was voluntarily assumed.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 25

THEREFORE IN THE CASE SUCH AS BECKFORD

• Where the defendant claims that he believed that he was shot at, the jury must be asked:
• First whether D might have honestly believed that he was being shot at
• Second D use of the gun was proportionate to the perceived threat

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 26

MEANING OF REASONABLE FORCE

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 27

REASONABLE FORCE

• Subsection 76(6) of the CJIA affirmed the common law position that the degree
of force used by D is not to be regarded as having reasonable in the
circumstances as D believed them to be if it was disproportionate in those
circumstances.
• Subsection 76(6) has now been amended to provide some extra protection to
householders who overreact in the terror of discovering a burglar.
• For householders encountering an intruder, the question is not whether the degree
of force is disproportionate but whether it is gross disproportionate.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 28

REASONABLE FORCE

• The common law provides what is disproportionate is a question of degree. This means that the degree
of force deemed reasonable varies according to the nature and degree of threat. In AG Reference 1984
– it was held that the shopkeeper who armed himself with petrol bombs, was not acting
disproportionately.
• However a person protecting his property from Burglars (Martin (Anthony) [2001] or preforming an
arrest Clegg [1995] will no doubt be acting disproportionately if he shoots to kill, but proportionately if
he shoots to pre-empt a murderous attack on himself or another (Beckford). The case law contains the
following guidance as to how to assess the reasonableness of defender’s response.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 29

REASONABLE FORCE
USE OF FORCE MUST BE NECESSARY

• The use of force will not be unreasonable if it is not immediately necessary (on the facts if D believed
them to be). If therefore, there are other defence options available, for example locking the door to
avoid intrusion, the use of force may not be reasonable.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 30

REASONABLE FORCE
NO DUTY OF RETREAT

• In Field(1972) – D was told that V was coming round to attack him. D remained where he was and upon
the attach he killed V. The prosecution’s argument was that when D found out that he was going to be
attacked, he would have taken shelter or avoided the problem, therefore, it makes his use of force
unreasonable.
• Court of Appeal rejected the argument and allowed the defence.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 31

REASONABLE FORCE
PROVOKING AN ATTACK

• A person is not denied the defence if the person himself was responsible in provoking the attack in the
first place.
• In Rashford D mounted a revenge attack on V. V himself went out on an attack with his friends and
while protecting him D killed V.
• The Court of Appeal held that even thought the defendant had provoked the attack he still is not denied
the defence of self defence as along as V’s actions were as such to justify a response and violence used
by D was not disproportionate to V’s actions.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 32

REASONABLE FORCE
PRE-EMPTIVE STRIKE

• A person can make pre-emptive strike as long as they honestly believe that an attack was imminent.
• This was made clear in the case AG Reference (No.2 of 1983). It was held that making and storing of
petrol bombs could be a defence to the offence of amounting. In effect, to the possession of an
explosive substance for unlawful purpose.
• In Beckford Lord Griffith made a following statement about the principle:
• A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot;
circumstance may justify pre-emptive strike.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 33

REASONABLE FORCE IS DECIDED OBJECTIVELY
• Whether the degree of force used is reasonable is decided objectively
rather than from the defender’s point of view.
• In deciding whether reasonable force was the court must take into
account the fact that D was acting under conditions of extreme stress,
and so the jury must accept that under such conditions reasonable
people may make errors of judgment (Owino (1996)). As Lord Morris
said in Palmer v R [1971] AC 814: ’Detached reflection cannot be
expected in the face of an uplifted knife’.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 34

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 35
• Notice, however, that the defender’s honest and instinctive belief is only evidential. It cannot override
the requirement that the degree of force used must be proportionate to the threat.
• In R v Clegg, a private soldier serving with the Parachute Regiment in West Belfast fired four shots into
an oncoming car at a road block. The final shot killed a passenger in the back seat. D’s defence was that
he had fired because he had thought that a colleague’s life was in danger. In relation to the first three
shots the judge had accepted that D may have fired in self-defence or in defence of his colleague.
• However, the fourth shot had been fired at the car after it had passed. It could no longer, therefore, ground
the defence of self-defence since the danger had passed. Any use of force thus became automatically
unreasonable whatever D’s degree of stress.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 36

• Again, in R v Martin, D shot dead a burglar because he overestimated the danger to which he was
subject. He may have done so due to a psychiatric disorder. 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 law and is
an objective question. D’s honest assessment of the degree of force necessary was not decisive. It could
not be objectively reasonable to shoot a burglar in the absence of any evidence of physical threat,
however scared he was.
• A similar result occurred in Yaman [2012] EWCA Crim 1075. The Court held that, even if it was assumed
that in attacking a court-appointed locksmith with a hammer, D had mistakenly ‘done what he honestly
and instinctively thought was necessary’ to resist a supposed burglary on the family shop, the jury must
still inevitably have concluded that the force he used was excessive. The trial judge’s failure to refer to
s.76(7) when directing the jury was not therefore fatal to D’s conviction for wounding under s.18 of the
OAPA 1861.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 37

• Both Yaman and Martin illustrate the kind of problems likely to arise when householders are
unexpectedly confronted with an intruder. In 2013, the Government made another attempt to ensure
that public perceptions of the scope of the defence corresponded with the legal underpinnings. This
time, however, the change is one of substance rather than language. Section 43 of the Crime and Courts
Act 2013 adds a new subs.(5A) to s.76 of the CJIA. The effect of subs.(5A) is to apply a lower standard of
reasonableness of reaction to the householder (e.g. Tony Martin), than for the defence generally (e.g.
Private Clegg), to give householders ‘greater latitude in 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.’ (Ministry of Justice circular). Subsection 5A
provides:
• In a householder case, the degree of force used by D is 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.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 38

• The effect of subs.(5A) is that, if householders act honestly and instinctively to protect themselves or
their family from intruders using force that was reasonable in the circumstances as they saw them, they
will not necessarily be guilty of an offence even if the level of force turns out to have been
disproportionate in those circumstances.

Jehanzeb Jehangiri The Institute of Legal Studies Lahore 39