DEFENCE

Self-defence
Is the use of reasonable force against an unjust threat. It is also a complete defence of justification in
cases involving all levels of assaults.Reasonable force can be defined as the minimal force required
preventing an assault from occurring or being repeated.
In the case of Beckford v R (1988) the defendant, a police officer shot dead a suspect, having been told
that he was armed and dangerous. When that man ran out of a house towards him, the defendant shot
him because he feared for his own life. The prosecution case was that the victim had been unarmed and
thus presented no threat to the defendant. Lord Griffith said:"A man about to be attacked does not have
to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a strike.
A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and
his property.
In the case of R v Rose (1884), where the defendant who had shot dead his father whilst the latter was
launching a murderous attack on the defendant's mother, was acquitted of murder on the grounds of
self-defense. Use of deadly force is never justified to protect Personal Property other than a dwelling.
For example, a person would not be justified in shooting a person who is taking an automobile, no
matter how expensive. Reasonable force may be used to protect such personal property.
In R v Hussey (1924), the defendant was barricaded in his room while his landlady and some
accomplices were trying to break down his door to evict him unlawfully. The defendant had fired a gun
through the door, and wounded one of them. He was acquitted of the wounding charge on the grounds
of self-defense. It was stated that it would be lawful for a man to kill one who would unlawfully
disposes him of his home.

In the case of R v O'Grady [1987] the defendant woke from a drunken stupor to find his equally drunk
friend hitting him. In order to defend himself he retaliated with several blows and then returned to
sleep. He awoke to find his friend dead. The defendant was convicted of manslaughter and appealed
against conviction, relying on the defence of self-defence in the circumstances as he mistakenly
believed them to be. The Court of Appeal dismissed the appeal and said that a mistake arising from
voluntary intoxication could never be relied on in putting forward a defence.
A defendant who successfully invokes self-defence may be found not guilty or not liable. If the
defendant's self-defence was imperfect, the self-defence may only reduce the defendant's liability.
Imperfect self-defence is self-defence that was arguably necessary but somehow unreasonable.
INSANITY
DEFENCE OF INSANITY
The defense of insanity is concerned with the defendants mental condition at the time the alleged
offence. At that time he may be suffering a permanent or occasional mental malfunction. Every man is
presumed to be sane until the contrary is proved.
It must be clearly proved that at the time of the commission of the act the party accused was labouring
under such a defect of reason, from the disease of the mind as not to know the nature and quality of the
act he was doing or if he did know it, that he did not know what he was doing was wrong.
The defence of insanity is contained in the M'Naghten rules (M'Naghten's Case (1843) 10 Cl& F 200),
which today operate largely as a restriction on what might otherwise be a complete defence based on
lack of mensreaor automatism.
The defence is concerned with the defendants legal responsibility at the time of his alleged offence,
and not simply with whether he was medically insane at that time. In other words, it is concerned with
insanity in a legal sense, and not in a medical sense.
2

What the law regards as insanity may be far removed from what would be regard as insanity by a
doctor. The issue of whether the defendant has the defence of insanity is a matter for the jury to decide
in the light of the medical and other evidence.
Mental illness short of insanity under the M'Naghten rules cannot in itself affect the liability of the
defendant; the only exception is the offence of murder where it may give rise to the qualified defence
of diminished responsibility.
The doctrine laid down in the M'Naghten's Case is that:
The Jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his crimes, until the contrary is proved to their
satisfaction; and that, to establish a defense on the ground of insanity, it must be clearly proved that, at
the time of the committing of the act, the party accused was laboring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did
know it, that he did not know he was doing what was wrong

In order to succeed with his defence of insanity the defendant must prove the following requirements:
1- Disease of the mind
Here, the defendant must show that he was suffering from a disease of the mind in the legal sense of
that term when he did the prohibited act. The disease must be of the mind; it need not be of the brain as
per Kemp [1957] 1 QB 399.
2- Defect of reason
Here, a deprivation of reasoning power is required. The defendant must prove that he was suffering
from a defect of reason due to disease of the mind.
A defect of reason is more than a momentary confusion or absent- mindedness.
As per Clarke [1972] 1 All ER 219the Court of Appeal held that even if the other elements of the rules
3

were satisfied, there was no defect of reason but at most a mere Ab-sent-minded failure to use the
powers of reasoning that the accused undoubtedly still possessed and thus the accused was entitled to
have the simple defense of lack of mensreaconsidered by the jury rather than the defense of insanity.

3- Ignorance of nature and quality of act or that is wrong

The defect of reason due to disease of the mind must affect legal responsibility, something to which a
persons capacity to appreciate what he was doing, and whether it was lawful is highly relevant and the
defendant must go on to prove that because of his defect of reason due to disease of the mind either he
did not know the nature and quality of his act or, if he did know this, he did not know he was doing
wrong.
This defense is stipulated in the case of;

R v Kemp [1957]

The defendant during a blackout attacked his wife with a hammer causing her grievous bodily harm.
The medical evidence showed that he suffered from arterial-sclerosis, a condition which restricted the
flow of blood to the brain. This caused a temporary lapse of consciousness. Devlin J ruled that for the
purposes of the defense of insanity, no distinction was to be drawn between diseases of the mind, and
diseases of the body affecting the operation of the mind. Also, it was irrelevant whether the condition
of mind was curable or incurable, transitory or permanent. The jury returned a verdict of guilty but
insane. Devlin J said: 'The law is not concerned with the brain but with the mind, in the sense that
"mind" is ordinarily used, the mental faculties of reason, memory and understanding.
'Insanity is relevant at three points:
1. Insanity before trial 2. Unfitness to plead and 3. Insanity at the time of the offence

1. Insanity before trial

Where the offender is in custody but is obviously insane, the Home Secretary has the power to detain
him immediately in a mental hospital. Confirmation from two doctors of the offender's state of mind is
required.
2. Unfitness to plead
The question of unfitness to plead may be raised by the defence, prosecution or the judge. A special
jury is empanelled to decide if the defendant is unfit to plead. R v Pritchard(1836) 7 C&P 303
The defendant was deaf and mute. Alderson B set the test to apply in deciding fitness to plead: There
are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly,
whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to
comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he
might challenge any of you to whom he may object - and to comprehend the details of the evidence,
which in a case of this nature must constitute a minute investigation."
The jury were directed that there were to find him unfit to plead if in their opinion there was no certain
mode of communicating the details of the trial to the prisoner, so that he could clearly understand them,
and be able properly to make his defence to the charge.
3. Insanity at the time of the offence
Insanity at the time of the offence is determined by application of the following rules:
i). A defect of reason.
ii).The defect must be caused by a disease of the mind.
iii). The defect of reason must be such that the defendant did not know what he was doing or, if he
did know, he did not know the act was wrong.

MISTAKE
A mistake is a defense when it is mistake of facts. A mistake of law is no defense hence the maxim
ignoranciajuris non excusa. A mistake of fact is an incorrect conclusion reached by the offender in his
mental process. A mistake of fact can be in form of 2 types:
i.

Where the offender lacks knowledge either of complete blankness on that knowledge or there is
no knowledge on that subject

ii.

Where there is knowledge which is false

If a person commits an offence due to lack of knowledge in that area or the knowledge was false, he
can raise a defense of mistake of facts. Section 10 of the penal code provides for mistake of fact as a
defense. For the accused person to benefit from this defense of mistake of facts, he must hold that
mistake of fact honestly. This was ascertained in the case of Musa v R (1970) EARL 120.
On the other hand a mistake is a defense because it prevents the accused person from having the
mensrea which the law requires for a crime which offender is charged i.e. where the law requires
intention or recklessness with respect to actus reus, then mistake becomes a defense as the accused
does not have that state of mind.
Where negligence is require as mensrea, a mistake will negate that negligence since accused will not
have a standard to be used against his actions
MISTAKE OF LAW
A mistake of fact may sometimes mean, that while a person has committed the physical element of an
offence, because they were laboring under a mistake of fact, they never formed the required mensrea,
and so will escape liability for offences that require mensrea. This is unlike a mistake of law, which is
not usually a defense.

There is a general rule that ignorance of the criminal law is no defense, even if the ignorance is
reasonable in the circumstances.
By way of contrast to mistake of criminal law, mistake of civil law can quite easily provide a defense to
a criminal charge, provided the actusreus of the offence involves proof of a legal concept. Like the case
ofR v Smith [1974] QB 354. The defendant was the tenant of a flat. With the landlord's consent he
installed some hi-fi equipment and soundproofing. When given notice to quit the flat, the defendant
tore down the soundproofing to remove some wires that lay behind. Unknown to the defendant the
soundproofing had, as a matter of civil law, become a fixture of the property and therefore property
belonging to the landlord. The defendant's conviction for criminal damage was quashed by the Court of
Appeal. It was held that no offence is committed if a person destroys or damages property belonging to
another if he does so in the honest though mistaken belief that the property is his own.
MISTAKE OF FACT
A) MENS REA OFFENCES
It is clear from that a mistake of fact, rather than law, is a defense where it prevents the defendant from
forming the mensrea which the law requires for the crime with which he is charged.
B) NEGLIGENCE
Where the law requires only negligence, then only a reasonable mistake will lead to a defense: an
unreasonable mistake is one which a reasonable man would not make and is, therefore, negligent.
For example: A defendant goes into a supermarket and places eight items in a basket which is
presented to the cashier for payment in the usual way. Both honestly believe that all eight items have
been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices
that a mistake was made by the cashier so that only seven items were actually priced. This detective
7

arrests the defendant after leaving the store. Since the defendant honestly believes that he has become
the owner of goods in a sale transaction, he cannot form the mensrea for theft (which is usually
dishonesty) when he physically removes them from the store. Accordingly, he has not committed a
crime. However, not all crime requires true mensrea. Mistake of fact may not protect someone accused
of a crime of negligence or crimes of strict or absolute liability.
C) STRICT LIABILITY OFFENCES
If no mensrea is required with regard to one element of the actusreus then even an honest and
reasonable mistake with regard to that element will not negative liability. For example, see the case of
R v Prince (1875). The defendant took a girl under 16, believing on reasonable grounds that she was
18, out of the possession of her parents. The defendant was convicted and the conviction affirmed.
D) DRUNKEN MISTAKE
Where a defendant's mistake of fact arises from self-induced intoxication, it will only provide a defence
to crimes of specific intent. In general, where a defendant is charged with a basic intent crime, the jury
will be directed that evidence of self-induced intoxication is irrelevant to the question of what the
defendant believed to be happening. See for example in the case of
R v Woods (1981) 74 Cr App R 312. The defendant was convicted of a collective rape of one girl. He
made admissions of his part in it to the police but at his trial he went back on those admissions and said
in effect that he had so much to drink that he was not sure what had happened. He did not know
whether he had raped her or not and did not realize that she was not consenting to anything that went
on. Griffiths LJ stated: "The law, as a matter of social policy, has declared that self-induced
intoxication is not a legally relevant matter to be taken into account in deciding as to whether or not a
woman consents to intercourse."
8

R v Fotheringham [1988] Crim LR 846. The defendant got into his own bed after coming home from a
party and forced the baby-sitter (who was already in the bed) to have sexual intercourse. He claimed
that he was so drunk that he thought the girl was his wife. The Court of Appeal upheld his conviction.
It was held that: (1) self-induced intoxication cannot be used as a defence to a crime of basic intent and
stated that
(2) Neither could the defence of mistake be raised, if this mistake were caused by self-induced
intoxication:
R v O'Grady [1987] 3 WLR 321.
E) BURDEN OF PROOF
Whilst there is always an evidential burden on the defendant to put evidence before the jury that he did
actually make the mistake upon which he relies, the legal burden always rests with the prosecution to
establish beyond reasonable doubt that the defendant was not mistaken and therefore did have the
requisite mensrea for the offence with which he is charged.
F) EFFECT
As is the case in any trial where the prosecution fails to establish mensrea, if the defendant succeeds
with his defense of mistake he must be acquitted.

DURESS

Duress is the impulsion of a person to undertake an action against his or her will by the threat of
physical or economic harm. The defense of duress can be made when the defendant has been forced to
commit

criminal

act

by

another

person.

Duress is a defense to most offences if the allegedly criminal act was committed due to a threat of
9

physical harm if the act is not done. The situation must have been such that the accuseds will was so
forced that they became a mere innocent instrument of the criminal offending. The accuseds act can be
seen to have been induced by a threat made by a third person.
The defense, termed compulsion in the legislation, is codified in section 16 of the penal code (Cap
26) as follows:
A person is not criminally responsible for an offence if it is committed by two or more offenders, and if
the act is done or omitted only because during the whole of the time in which it is being done or
omitted the person is compelled to do or omit to do the act by threats on the part of the other offender
or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future
injury do not excuse any offence.
The rationale for the defense is that if a person is faced with a situation where they are compelled by
wrongful threats to act in a criminal way in order to avoid a grave harm to themselves, they cannot be
said to have acted voluntarily in committing the offence, and therefore should escape criminal liability.
Case: In R v Cawa,The first defendant, Ronny Cawa, described as the boss Commander of the GLF,
was charged with the murder of the three brothers on the first day and the ordering of the death of the
three Brothers on the second day. He accepted that he shot the three brothers and ordered the shooting
of the others, but claimed that he was acting in self-defense at the time.
The second defendant was charged with murder on the basis that he was an active participant in the
beating that led to the death of one of the Brothers. The second defendant claimed that at the time of
the murders he was acting under compulsion. And the court accepted without referring to any previous
cases.
There are five different requirements that must be met in order for duress to be raised.

1. The defendant must have actually been threatened.

10

2. The threat must have been of death or serious bodily harm.

3. The threat must have been made against another person.
4. The threat must be of immediate harm. Threats of future harm, no matter how serious they are, are
not enough to give rise to this defense.
5. It must be shown that the defendant had no opportunity to avoid the threat by a non-criminal method.
According to common law doctrines of criminal liability which is also applicable in Kenya, the defense
of compulsion does not apply to the crimes of treason and murder. For example, if X is compelled to
kill at a point of a gun directed at him by Y, then X has a good defense. In contrast, in Regina v. Howe
(The times of 20th February, 1987), the house of lords decided that the defense of duress was not
available to a person with murder, whether as a principle in the first degree (the actual killer) or as a
principal in the second degree (an aider and abettor). Their lordships departed from their previous in
D.P.P. for northern Ireland v. lynch, (1975) A.C. 653, that duress is available to an aider and abettor
to a murder.

A married woman (whether or not of monogamous marriage or under customary law) has the defense
of compulsion if she commits a crime in the presence of any any other coercion of the husband ( penal
code section 19).
INTOXICATION
Definitions;
1. Stimulation, excitement, or stupefaction caused by a chemical substance, or as if by one.
2. Substance i.e., especially due to ingestion of alcohol.
3. Poisoning; the state of being poisoned.
substance intoxication reversible, substance-specific, maladaptive behavioral or psychological
11

changes directly resulting from the physiologic effects on the central nervous system of recent
ingestion of or exposure to a psychoactive substance, particularly alcohol.
Test of a defense of intoxication
The court can take into account the degree of intoxication of the accused when determining whether it
has been proved that the accused had formed the intent to bring about a specific result.
1. Foreseeability test
The presence or absence of liability may be said to hang on a foreseeability test. The fact that the
consumption of alcohol or the ingestion of drugs may cause a loss of control is well-known. Thus,
anyone who knowingly consumes is, at the very least, reckless as to the possibility of losing control. If
they did not wish to lose control, they would not consume, so loss of control must be within the scope
of their intention by continuing to consume. But, loss of control is not instantaneous and without
symptoms.
The issue of involuntary consumption is therefore contentious. Involuntary loss of control is limited to
cases where there is no real loss of control with noticeable symptoms. Thus, for example, in many
states, the blood alcohol level for the commission of the offence of driving under the influence is set
sufficiently low that people might exceed the limit without realizing that they had consumed enough
alcohol to do so. Leaving aside the issue that, in some states, this is a strict liability offense excluding
drunkenness as a defense, there is usually a requirement that the person who "spiked" the drinks be
prosecuted in place of the driver. This reflects the fact that the commission of a crime has been
procured by the actions of secretly adding the alcohol and the practical fact that without this rule, too
many accused who are only marginally over the limit, might be encouraged to blame others for their
intoxication. More generally, the defense would be denied to people experiencing symptoms of
intoxication who continued to consume the spiked drink because they ought to have known what was
12

happening to them. Equally, if no further consumption occurred but they ought to have recognized that
they were affected by an unknown substance, beginning an activity such as driving would not fall
within the defense. In other words, the policy underpinning the operation of the law favors the
protection of the public as against the interests of an individual who recklessly or with willful blindness
exposes the public to danger.

Offenses of basic and of specific intent

In some states, a distinction is based on the nature of the mensrea requirement. While voluntary
intoxication may not be a defense to an offense of basic (sometimes termed "general") intent, it is
allowed as a defense to offenses requiring a specific intent. This term refers to two separate types of
offense:
1. Some offenses are based on basic intent where the mensrea is no more than the intentional or
reckless commission of the actusreus. But a limited number of offenses are defined to require a further
element in addition to basic intent, and this additional element is termed specific intent.
2. The inchoate offenses such as attempt, solicitation, and conspiracy require specific intent in a
slightly different sense. The test for the existence of mensrea may be:
(a) Subjective where the court must be satisfied that the accused actually had the requisite mental
element present in his or her mind at the relevant time (see concurrence);
(b) Objective where the requisite mensrea element is imputed to the accused on the basis that the
reasonable person would have had the mental element in the same circumstances;
(c) hybrid where the test is both subjective and objective.
The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to
society. If an accused has actually committed the full offence, the reality of the danger has been
13

demonstrated. But, where the commission of the actusreus is in the future, a clear subjective intention
to cause the actusreus of the full offense must be demonstrated. Without this "specific intent", there is
insufficient evidence that the accused is the clear danger as feared because, at any time before the
commission of the full offense, the accused may change his or her mind and not continue.

If a "specific intent" in either sense is required and there is clear evidence that the accused was too
intoxicated to form the element subjectively, this fact is recognized as a defense unless the loss of
control was part of the plan. But this is of little value to defendants since there are almost always
offenses of basic intent that can be charged and/or the basic intent offenses are usually lesser included
offenses and an alternative verdict can be delivered by judge or jury without the need for a separate
charge. For example in the case of ; Jaggard v Dickinson [1980] 3 All ER 716 which held that, for
the purposes of the statutory defense of lawful, a drunken belief will found the defense even though this
allows drunkenness to negate basic intent. This is limited authority and does not affect the generality of
the defense.
Examples of specific intent crimes include first degree murder based on premeditation and deliberation,
attempts, burglary (intent to commit larceny), larceny (intent to steal), possession of or receiving stolen
property (intent to steal), and robbery (intent to steal). General intent crimes include arson, rape, etc
Not a defence, more a denial of mensrea
A defendant can only benefit from a defence based on voluntary or involuntary intoxication if the court
is convinced that because of being intoxicated the defendant lacked the required mensrea, R v Kingston
[1994] HL.
Policy issue
If a defendant could simply claim intoxication as a defence, and be completely exonerated every crook
would have a drink before a crime spree, and then, when arrested claim intoxication and be
14

automatically acquitted.
DPP v Majewski (1977) HL
In Majewskiit was contended that if intoxication affected the mind of the defendant it was illogical and
unethical to distinguish between its effect on one state of mind and on another.
It was argued that there is no permissible distinction between offences of basic intent and those of
specific intent.
The Crown contended that that distinction had nevertheless represented the law of England for many
years. The House upheld the Crown's contention. It did so in the full knowledge that it was not
perfectly logical. It so held, in large measure, on grounds of policy.
As was observed by several of their Lordships, historically the law of England regarded voluntary
intoxication as an aggravation rather than a potential excuse and the development of the law had been
by way of a partial, but only a partial, relaxation of that common law rule where a specific intent was
required.
Dutch Courage Rule
Where D fortifies himself with alcohol to gain the courage to commit a crime this is known as Dutch
Courage and is no defence.

The courts complicated the rules on intoxication by distinguishing between dangerous drugs
and 'non dangerous drugs' in R v Bailey [1983] CAA defence based on automatism caused by
hypoglycaemia failed (the same argument could have been used for the effects of alcohol).
Held:"In our judgment, self-induced automatism, other than that due to intoxication from alcohol or
drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the
15

prosecution has provided the necessary element of recklessness. In cases of assault, if the accused
knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled
with the result that he may cause some injury to others and he persists in the action or takes no
remedial action when he knows it is required, it will be open to the jury to find that he was reckless."
R v Hardie[1985] CA the court considered an accused, charged with an offence of Criminal Damage:
He had taken a number of Valium tablets (which were prescribed for someone else). Held: That this
did not necessarily amount to voluntary intoxication.

NECESSITY AS A DEFENSE
A necessity may be claimed as a defense when a defendant reasonably believed that his or her criminal
act was immediately necessary to avoid imminent harm. The reasonableness of the defendant's act and
the harm that was sought to be avoided by the defendant are the essential elements of the defense. The
defendant must show that the harm that he or she sought to avoid was greater than the harm that was
committed by his or her criminal act. In other words, the defendant must show that he or she was
attempting to achieve a "greater good."
The defense of necessity is different from the defense of duress. The defense of necessity arises when
the forces of nature compel a defendant to commit a criminal act. The defense of duress arises when
another person compels the defendant to commit the criminal act. The defense of duress is a more
specific affirmative defense than the defense of necessity. The defense of duress also requires a higher
burden of proof for the defendant.
A defendant claiming the defense of necessity must prove that he or he reasonably believed that his or
her criminal act was immediately necessary to avoid imminent harm. A mere suggestion of the
possibility of harm is not sufficient for the defense. Also, if the threat of harm has been avoided or has
passed, the defense does not apply.
16

A defendant claiming the defense of necessity must also prove that the harm that he or she sought to
avoid clearly outweighed the harm that was committed by the defendant's act. This element must be
proved according to the standards that an ordinary and a reasonable person would have used under the
circumstances. The standards are objective. They are not measured by the defendant's own moral or
ethical standards. The standards are a question of fact for a jury.
The defense of necessity does not apply if the legislature has specifically excluded certain offenses
from the defense. Examples of such exclusions include the medical use of marijuana, possession of a
weapon in a penal institution, or economic necessity as a justification for the commission of an offense.
Whether there is a legislative exclusion is a question of law for the determination of a trial court and
not a jury.
In order to assert the defense of necessity, a defendant must admit that he or she committed the offense
with which he or she is charged. If the defendant has asserted other defenses and if there is evidence to
support those other defenses, the defendant may deny some of the elements of the offense.
Whether a defendant is entitled to a jury instruction on the defense of necessity is a question of law for
a trial court. The trial court may determine whether the defendant's beliefs and standards were
reasonable as a matter of law. The defendant may not be entitled to a jury instruction on the defense if
he or she provoked the harm, if he or she placed himself or herself in the situation that created the
harm, or if his or her own recklessness or negligence created the harm.

In Englishlaw, the defense of necessityrecognizes that there may be situations of such overwhelming
urgency that a person must be allowed to respond by breaking the law. There have been very few cases
in which this defense has succeeded. However, the Crown Prosecution Service tends to choose not to
prosecute those cases where it believes potential defendants have acted reasonably in all the
17

circumstances. This defence was used in the early trial ofRegina v. Dudley & Stephens (1884) 14
QBD 273 DC, where four shipwreckedsailors were cast adrift in a small boat without provisions. To
save themselves, the three strongest decided to eat the fourth, the 17 year-old cabin boy. The court
ruled that cannibalising the boy was not urgently necessary. Even though the cabin boy would almost
certainly have died of natural causes, the sailors killed the boy intentionally and were guilty of murder.
There was some degree of necessity arising from the threat of starvation but, at any moment, a ship
could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could
never be sure that the killing was actually necessary from one minute to the next, the defence was
denied. Cannibalism itself is not an offence so long as the death occurs naturally.
Dudley and Stephens were convicted of murder and sentenced to be hanged, however their sentence
was later reduced to just six months in prison. The fourth man, Brooks, was not tried, as he had not
participated in the murder. The principles from this case form the basis of the defence of necessity not
being available for murder.
The principles
There must be an urgent and immediate threat to life which creates a situation in which the defendant
reasonably believes that a proportionate response to that threat is to break the law. This reflects the
distinction between the defenses of necessity and duress in that the former is pressure of circumstances
arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will
of the defendant. The general approach was laid down by Lord Denning in Southwark London
Borough Council v Williams (1971) 2 AER 175 that necessity should be denied as a general defense
because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of
necessity, any poor person might seek to justify burglary to steal food by arguing that he or she had
reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact
that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty
18

(e.g. by seeking welfare support or charity), would deny the defense of necessity. The Canadian courts
put the issue succinctly. In Perka v The Queen (1984) 2 SCR 232, Dickson J. held at p250 that
"If the defense of necessity is to form a valid and consistent part of our criminal law it must, as has
been universally recognized, be strictly controlled and scrupulously limited to situations that
correspond to its underlying rationale."
When considering necessity in R v Cole (1994) Crim. LR 582 Simon Brown LJ, it was held that the
peril relied on to support the plea of necessity lacked imminence and the degree of directness and
immediacy required of the link between the suggested peril and the offense charged. This defendant
robbed two building societies in order to repay debts. The form of defense was "duress by
circumstance" which attempts to extend the coverage of duress by borrowing the idea of an
uncontrollable external circumstance forcing a choice by the defendant to break the law.
Medical necessity
In Quayle and Others v R; Attorney General's Reference (No. 2 of 2004) (2005) EWCA Crim1415
each defendant appealed convictions associated variously with the cultivation or possession of cannabis
resin to be used for pain management. The choice facing the appellants was not severe pain without
cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects
without cannabis, and absence of pain with minimal side effects with cannabis. The difference was
restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a
prima facie possibility of serious injury, let alone one such as would overwhelm the will of the
defendant. There was no evidence from an objective stand point that the appellants were acting
reasonably and proportionately to a threat of injury. The evidence was clear that it was possible for the
appellants to control pain by conventional and legal means. Further, for the defence of necessity to
succeed, the threat of injury must be immediate and imminent, and come from an extraneous source.
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The parties were responding to continuous pain over a period of time and, in any event, pain is too
subjective to qualify as an external threat. There was nothing urgent that overwhelmed their will to
resist. The parties then argued that the law breached Article 8 European Convention on Human Rights
by interfering with the right of privacy. Interference with the right of respect for private life is
permissible under Article 8(2) if "in accordance with the law and . . ..necessary in a democratic society
. . ... for the prevention of disorder or crime, for the protection of health or morals, or the protection of
the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County
Council (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and
scientific evidence, but their conclusion was that this was a policy matter more properly within the
remit of the relevant Minister. Thus, this unlawful self-help did not qualify as necessity and did not fall
within the protection of Article 8 ECHR.
In Altham (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road
accident. He was charged with possession under s5(2) Misuse of Drugs Act 1971. The judge at first
instance refused to leave the defence of medical necessity to the jury so the defendant changed his plea
to guilty. The Court of Appeal held that Article 3 ECHR not to subject a person to inhuman or
degrading treatment does apply to the State. The defendant argued that using cannabis was the only
way in which his symptoms could be alleviated and that he could not do so without committing a
criminal offence. Thus, the State, by prosecuting him, subjected him to degrading treatment. The Court
said that the State, by refusing cannabis, neither did nor refrained from doing anything that would
subject the defendant to degrading treatment. The State had done nothing to change the defendant's
condition for better or worse, and there was nothing to require the Court to read the Misuse of Drugs
Act 1971 as subject to a defence of medical necessity. The Court applied Quayle where the focus was
on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose
and effect of the legislative scheme.
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In Re A (Children) (Conjoined Twins: Surgical Separation) (2000) 4 AER 961 Jodie and Mary were
ischiopagus conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it
was lawful to perform surgery to separate them, when the separation would kill Mary. If the operation
did not take place there was evidence that both would die within six months. The court proceeded on
the basis that the potential charge would be murder in that, although the girls were physically joined,
they were separate "lives in being". The court decided that the operation would be lawful. Ward LJ.
concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit
lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy of
"sanctity of life" because of the "quasi self-defence", but Brooke LJ, rejected self-defence 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 overwhelmed by the threat. Instead,
the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather
than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best
interests, but not in Mary's best interests, because it denied her "inherent right to life." 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." Jodie could benefit from the surgery to enjoy probably a near normal life;
refusal to allow separation would result in the death of both twins. So "the least detrimental alternative"
was to allow separation. Necessity would not usually be allowed as a defence to murder, but Brooke
LJ. distinguishedDudley & Stephens on the basis that the doctors were not selecting the victim unlike
the cabin boy in Dudley. The decision is restricted to cases of medical necessity and a conflict of duty
owed both by doctors to different patients and by parents to their children, but does provide an
interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as
to who should take such decisions on behalf of patients.
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REFERENCES
1. Keating, H. Clarkson, C. (2003). Criminal Law (5th Ed.) London: Sweet & Maxwell
Limited.
2. Smith, J. & Hogan. (2002). Criminal law: Case and material (8th Ed. p3) London:
Butterworths.
3. Cards, Cross & Jones (2006). Criminal law (17th Ed. p34).
4. Blackstone's Criminal Practice 2011

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