INSANITY The question of insanity may arise in a criminal case in two ways. It may be alleged that D is unfit to plead to the indictment because he cannot understand the charge and the possible pleas, cannot challenge jurors adequately, cannot instruct counsel, or cannot understand the evidence; or alternatively that he was legally insane at the time of the alleged offence. Such an allegation is determined by a jury, usually a special jury separate from that empanelled to try the case, and prior to 1991 a finding of unfitness or insanity led automatically to D's indefinite committal to a mental hospital. Criminal Procedure (Insanity) Act 1964 s.4A Where it is determined by a jury that the accused is under a disability ... the trial shall not proceed but it shall be determined by a [different] jury ... whether they are satisfied that he did the act charged against him as the offence. Criminal Procedure (Insanity) Act 1964 s.6 Where on a trial for murder the accused contends [a] that at the time of the alleged offence he was insane, or [b] that at the time he was suffering from diminished responsibility, the court shall allow the prosecution to adduce evidence tending to prove the other of those contentions. R v Podola  3 All ER 418, CCA D was charged with murdering a policeman, but claimed he could not remember any of the alleged incident. Edmund Davies J said the onus was on D to establish his unfitness to plead, and a special jury empanelled for that purpose found he was not suffering from a genuine loss of memory. Dismissing D's appeal, the Court of Criminal Appeal said that if D contends that he is insane then the burden of proof (on a balance of probabilities) lies on him; conversely, if it is the prosecution that argues for insanity, the prosecution must prove it. In any event, the mere fact that a defendant could not remember what had happened did not render him unfit to plead. R v Horseferry Road Magistrate ex p K  3 All ER 719, DC K was charged with affray and common assault, and elected summary trial. After he had pled not guilty, but before any evidence had been heard, the stipendiary magistrate reviewed psychiatric reports which appeared to raise an arguable defence of insanity. The magistrate thereupon committed the case for trial in the Crown Court, and K sought judicial review of this decision. The Divisional Court dismissed his application, saying the magistrate had power to reconsider the mode of trial decision at this point, but confirmed obiter that the common law defence of insanity can still be raised in summary proceedings. Insanity is defined for criminal law purposes by the M'Naghten tests, which are more than 150 years old. M'Naghten's Case (1843) 8 ER 718, HL D was charged with shooting and killing the Prime Minister's private secretary, and the jury found him not guilty on the grounds the he was insane. The House of Lords summoned the judges to give their views on what state of mind constituted insanity for legal purposes. Tindal CJ, giving the judges' collective answer, said the jury should be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved. To establish a defence on the grounds of insanity it must be clearly proved that at the time of committing the act, the accused was labouring 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. R v Windle  2 All ER 1, CCA A weak character D was charged with murdering his wife W, who was 18 years older than D, potentially suicidal and probably insane herself, by giving her 100 aspirins. His defence was based on insanity, but Devlin J declined to leave the issue to the jury; the evidence showed clearly that D knew what he was doing, and that although he may have thought he was doing his wife a kindness he knew it was against the law. The Court of Criminal Appeal upheld D's conviction; courts of law, said Lord Goddard CJ, can only distinguish between that which is in accordance with law and that which is contrary to law. D knew what he was doing was illegal, and that was what the M'Naghten rules meant by knowing it was wrong. Disease of the mind A "disease of the mind" need not be a disease of the brain itself, but covers any physical disease which affects the operation of the mind. The law has not developed to reflect the development of medical knowledge in the 150 years since the M'Naghten rules were laid down, and defendants can be found legally insane who would not for a moment be regarded as having any mental illness in the modern medical sense. R v Kemp  3 All ER 249, Devlin J A man D was charged with causing grievous bodily harm to his wife by striking her with a hammer. Uncontested medical evidence was given that D was suffering from arteriosclerosis (hardening of the arteries), which had caused congestion of blood in the brain; this in turn had brought about temporary unconsciousness as a result of which D acted irrationally and irresponsibly. The judge said that although there may be a medical difference between mental diseases which have a physical cause and those which do not, such a distinction is irrelevant for the purposes of the law. The words "disease of the mind" are not the same as "disease of the brain"; the hardening of D's arteries had been shown on the evidence to have affected his mind in such a way as to cause a defect of reasoning, and that was enough. On this direction, the jury found D guilty but insane (which was then the form of the special verdict) and he was ordered to be detained during Her Majesty's pleasure. R v Sullivan  2 All ER 673, HL A man D suffered from psychomotor epilepsy, and had a petit mal seizure about once a week. He had one such seizure while visiting an old friend V, in the course of which he kicked V about the head and body, causing significant injuries. D was charged with causing grievous bodily harm, and claimed sane automatism, but the trial judge ruled that the defence amounted to insanity. The House of Lords reluctantly upheld this ruling; epilepsy which impaired D's reason, memory and understanding came within the scope of the M'Naghten rules. R v Hennessy  2 All ER 9, CA A diabetic D was charged with taking a conveyance and driving while disqualified; his defence was that he was suffering from hyperglycaemia (excessive blood sugar) through failing to take his proper dose of insulin, and was in a state of automatism. The trial judge said this amounted to insanity, diabetes being an internal cause affecting the operation of the mind and hence "a disease of the mind" within the meaning of the M'Naghten rules, and the Court of Appeal upheld this ruling. [Note the important distinction between hyperglycaemia resulting from the diabetes itself, as in this case, and hypoglycaemia resulting from the treatment, as in Quick above.] R v Burgess  2 All ER 769, CA A sleepwalker D hit his friend V on the head with a bottle and then a video recorder, causing a cut to her scalp, and then grasped her round the throat as if to strangle her. He was charged with assault causing her actual bodily harm, and claimed sane automatism. The trial judge directed the jury in terms of insanity, and the jury returned a special verdict. The Court of Appeal upheld the direction and dismissed D's appeal. On several occasions, said Lord Lane CJ, sleep-walking had been used obiter as an example of sane automatism, but the evidence in this case was that D's sleepwalking was the result of an abnormality of the brain function, and this was a disease of the mind within the context of the M'Naghten rules. An irresistible impulse is not enough for insanity, though it may go towards diminished responsibility if the defendant is charged with murder. R v Kopsch (1925) 19 Cr App R 50, CCA A man D was convicted of killing his aunt by strangling her, allegedly at her request and "under the direction of his subconscious mind". He appealed on the grounds that the trial judge had not directed the jury that a person who commits an act which by mental disease he cannot control is not criminally responsible for it. Dismissing his appeal, Lord Hewart CJ said the fantastic theory of uncontrollable impulse was not and should not be any part of the law of insanity. R v Byrne  3 All ER 1, CCA D strangled a young woman V and mutilated her body. At his trial for murder he brought medical evidence to support his claim that since childhood he had suffered violent and perverted sexual desires that he found it difficult and sometimes impossible to resist. The Court of Criminal Appeal quashed D's conviction for murder and substituted manslaughter; lack of self-control due to an abnormality of mind is capable of constituting diminished responsibility, and the question should have been put to the jury. Insanity does not extend to mere absent-mindedness, nor to the effects of medication (which may be sane automatism), nor to voluntary intoxication (see below.) R v Lipman  3 All ER 410, CA D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat. He was charged with murder and convicted of manslaughter. Upholding the conviction, the Court of Appeal said that since no specific intent is required for manslaughter, self-induced intoxication (whether by drink or drugs) affords no defence. R v Clarke  1 All ER 219, CA A woman D went to a supermarket and put various items into the usual wire basket, but before going to the checkout she transferred several items into her own bag and did not pay for them. She was charged with theft but said she did not intend to steal, and brought medical evidence to show that she suffered from absent-mindedness as a result of depression. The trial judge ruled this amounted to a plea of insanity and D thereupon pled guilty, but the Court of Appeal quashed her conviction. The M'Naghten rules, said Ackner J, relate to accused persons who by reason of a disease of the mind are deprived of the power of reasoning, not to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full. R v Quick  3 All ER 347, CA A psychiatric nurse D was charged with assaulting a patient. D was diabetic, and his defence was that he was suffering from hypoglycaemia at the time (that is, low blood sugar following his daily insulin injection) and did not know what he was doing. The trial judge ruled that this defence amounted to insanity, whereupon he pled guilty. He then appealed on the ground that the judge's direction was wrong in law, and the Court of Appeal quashed his conviction. D's alleged mental condition was caused not by his diabetes but by the use of insulin prescribed by his doctor; consequently, it was not due to a disease of the mind. The Court doubted whether the jury would have accepted D's story, but they should have been given a chance to consider it. Until 1991 a defendant found not guilty by reason of insanity was automatically committed to a psychiatric hospital until such time as the doctors decided he was cured. Since then, however, the judge has a number of options available to him. Criminal Procedure (Insanity) Act 1964 s.5 as amended Where a special verdict is returned that the accused is not guilty by reason of insanity, or findings are made that the accused is under a disability and that he did the act charged against him ... the court shall either make an order that the accused be admitted to such hospital as may be specified, or (unless the offence is one for which the sentence is fixed by law) make a guardianship order, or a supervision and treatment order, or an order for his absolute discharge. AUTOMATISM The law makes a distinction between insanity and sane automatism, but the distinction is a fine one. Its practical importance lies in the fact that although either can lead to an acquittal, a "special verdict" of insanity allows the judge to commit the defendant to a psychiatric hospital. Sane automatism arises when the body acts for itself, without control from the mind. Very few cases are reported in which a defence of sane automatism has been accepted; the writers of textbooks suggest it might apply to a sudden muscular spasm or fit, a sudden temporary illness, a hypnotic trance, an accident causing concussion, the effects of an anaesthetic administered for proper medical reasons, or the intervention of a non-human agency such as a swarm of angry bees. R v Charlson  1 All ER 859, Barry J A good father D, for no apparent reason, hit his ten-year-old son on the head with a hammer and threw him into a river. At his trial for causing grievous bodily harm with intent, there was evidence that D suffered from a cerebral tumour which could have caused the sudden violence. The judge directed the jury that if the defendant did not know what he was doing, so that his mind was not in control of his limbs, they should acquit, and the jury did so. (The question of insanity was apparently not raised. Bratty v Attorney-General  3 All ER 523, HL D was convicted of murdering an 18-year-old girl by strangling her, in spite of his defence based on automatism, and his appeals were dismissed. The House of Lords distinguished sane from insane automatism, but confirmed that both were available as defences. No act is punishable if done involuntarily, said Lord Denning, and the term "automatism" describes any act done by the muscles without the control of the mind, such as a spasm, a reflex action or convulsion, or an act done by a person not conscious of what he is doing, such as an act done while suffering from concussion or while sleepwalking. But he doubted the direction in Charlson: any mental disorder that has once manifested itself in violence and is prone to recur should be regarded as a disease of the mind pointing towards insanity. The courts will not normally accept a defence of automatism without some medical evidence to support it, and are understandably cautious even then. Hill v Baxter  1 All ER 193, DC A driver D was behind the wheel when his car collided with another; at his trial on a charge of dangerous driving he claimed he had been overcome by an unknown illness and had been unconscious. The magistrates acquitted him on the basis of automatism, but the Divisional Court allowed the prosecutor's appeal. A claim of sudden illness or concussion must be supported by some credible evidence, they said, usually going beyond D's mere assertion, but (Lord Goddard CJ dissenting) the burden of proof thereafter is on the prosecution to show that the act was a voluntary one. Watmore v Jenkins  2 All ER 868, DC A driver D suffering progressive hypoglycaemia who gradually lost consciousness over the course of a five-mile drive was charged with dangerous driving. A five-man Divisional Court dismissed his appeal; Winn J said a state of automatism is no more than a modern catchphrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs. Only when the driver is not really driving at all is the defence of automatism available to him. R v Smith (Sandie)  Crim LR 531, CA A woman D was charged with threatening to kill and carrying an offensive weapon. She was already on probation for manslaughter by reason of diminished responsibility, and brought evidence to show a history of psychological disturbance and violent behaviour clearly associated with her menstrual cycle. The judge said this PMT could not provide a defence of automatism, but (following conviction) made a probation order with a condition D undergo a course of drug treatment. The ruling and sentence were affirmed on appeal. Attorney-General's Reference (No.2 of 1992)  4 All ER 683, CA The driver of a heavy goods lorry had crashed into a stationary vehicle on the hard shoulder of a motorway, killing two people standing nearby, was acquitted of causing death by reckless driving after the Recorder had left sane automatism to the jury. The Court of Appeal confirmed the legal rule expressed in Watmore v Jenkins; driving without awareness is incapable of founding a defence of automatism unless there is total destruction of voluntary control on the defendant's part, and impaired or reduced control is not enough. The driver in the instant case was still steering his vehicle in a straight line, and had admitted seeing the flashing hazard lights at a distance of ¼ mile even though he had not responded to them. Voluntary intoxication by drink or drugs (other than drugs taken for proper medical reasons) cannot underpin a defence of automatism even if the defendant did not know what he was doing. R v Lipman  3 All ER 410, CA D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat. He was charged with murder and convicted of manslaughter. Upholding the conviction, the Court of Appeal said that since no specific intent is required for manslaughter, self-induced intoxication (whether by drink or drugs) affords no defence. DPP v Majewski  2 All ER 142, HL D took a mixture of drugs and alcohol and subsequently assaulted the landlord in a pub brawl. His conviction was upheld: D's intoxication was the result of his own voluntary reckless act, said the House of Lords, and the trial judge had rightly directed the jury that they were to ignore it in considering whether he had formed the necessary mens rea in a crime of basic intent. Lord Elwyn-Jones LC said that if a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His conduct in reducing himself to that condition supplies the evidence of mens rea sufficient for crimes of basic intent. Lord Simon said one of the prime purposes of the criminal law is the protection from certain proscribed conduct, including unprovoked violence, of persons who are pursuing their lawful lives. To allow intoxication as a defence would leave the citizen legally unprotected from unprovoked violence where this was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing. There are a few cases, however, in which automatism has been pled successfully. R v Quick  3 All ER 347, CA A psychiatric nurse D was charged with assaulting a patient. D was diabetic, and his defence was that he was suffering from hypoglycaemia at the time (that is, low blood sugar following his daily insulin injection) and did not know what he was doing. The trial judge ruled that this defence amounted to insanity, whereupon he pled guilty. He then appealed on the ground that the judge's direction was wrong in law, and the Court of Appeal quashed his conviction. D's alleged mental condition was caused not by his diabetes but by the use of insulin prescribed by his doctor; consequently, it was not due to a disease of the mind. The Court doubted whether the jury would have accepted D's story, but they should have been given a chance to consider it. R v T  Crim LR 256, Southan J A young woman D was charged with taking part in a robbery with others. When arrested she could remember very little, but later examination showed evidence that she had been raped a few days earlier. A psychiatrist diagnosed post-traumatic stress disorder, and suggested she had not at the time of the robbery been acting with her conscious mind. The judge said there was a question of sane automatism to go to the jury: the actual verdict is not reported. R v Antoniuk (1995) unreported A woman who stabbed her lover in a "robot-like" trance after he had raped her was acquitted of unlawful wounding, apparently on the basis of automatism. R v Padmore (1999) unreported A diabetic D stabbed a housemate with a kitchen knife after entering a state of hypoglycaemic automatism. His trial for murder was abandoned after medical evidence had been given, the prosecution offering no further evidence. DURESS The defence of "duress by threats" is available to a person who commits the actus reus of an offence, with the appropriate mens rea, only because of a threat or threats made by some other person or persons. Lynch v DPP for Northern Ireland  1 All ER 913, HL A man A drove a car to a certain place under threats from an IRA gunman M, waited while M and his associates killed a policeman, and then drove them away. He was charged as an accessory to murder, but his defence of duress was allowed by a 3-2 majority in the House of Lords. Lord Simon (dissenting) said the threat must be a threat of death or serious personal injury; threats to damage property, or threats of any other kind, are not sufficient. Nobody, said Lord Wilberforce, would dispute that the greater the degree of heinousness of the crime, the greater and less resistible must be the degree of pressure, if pressure is to excuse. [The decision to allow the defence of duress to an accessory to murder has since been overruled in Howe.] R v Valderrama-Vega  Crim LR 220, CA D was charged with importing prohibited drugs, and claimed duress; Colombian drug dealers had threatened to kill or injure D and his family if he did not comply. He was also under financial pressure and had been threatened with disclosure of his homosexuality. Allowing his appeal, the Court of Appeal said the threat to expose D to criminal charges was not itself a defence (though it could be considered in mitigation of sentence), but that so long as the threats of physical violence were sine qua non to D's decision, the other factors too could be taken into account. R v K (1983) 78 Cr App R 82, CA A prisoner D gave false evidence on oath in support of another prisoner X, and was subsequently charged with perjury. The Court of Appeal said the jury should have been told to take into account not only the threats made by X against D himself, but also the threats made against D's mother, whose address X had obtained and whose associates could have carried them out. R v Cole  Crim LR 582, CA A man D was charged with robbery at several building societies, and claimed he owed money to moneylenders who had threatened harm to him and his girlfriend if he did not repay it. The trial judge ruled this could not constitute duress; D then pled guilty and subsequently appealed. Dismissing his appeal, the Court of Appeal said the defence of duress by threats required that the threatener should have specified the offence to be carried out. The defence will not succeed if the defendant could reasonably have escaped from it (e.g. by informing the proper authorities), though it is arguable that the ineffectiveness of any protection likely to be offered may also be relevant. The key question is whether an ordinary person (an ordinary sober person of average braveness, but otherwise like the defendant in every relevant way) would have given in to the threat and acted as the defendant did. R v Graham  1 All ER 801, CA A homosexual D lived with his wife W and another homosexual X. D and X together killed W and were charged with murder; D's claim that he acted under X's duress was not accepted by the jury and he was charged with murder. [The prosecution did not take the point, decided later in Howe below, that duress is not available to a person charged with murder.] D appealed on the grounds that the judge had directed the jury that his subjective fear was not enough, and that D's acts must have been those of a reasonable man. The Court of Appeal dismissed D's appeal and upheld his conviction. The proper test, said Lord Lane CJ, was to ask whether D was impelled to act as he did because (as a result of what he reasonably believed X to have said or done) he had good cause to fear that if he did not so act then X would kill him or do him serious physical injury; and if so, whether a sober person of reasonable firmness, but sharing D's other characteristics, would have acted similarly in those circumstances? The fact that D's will to resist might have been overborne by drink or drugs would not be relevant. R v Hudson & Taylor  2 All ER 244, CA Two girls DD aged 17 and 19 were witnesses to a serious assault by W. Before W's trial, friends of W told the girls they knew their addresses and if they gave evidence against Wright they would be "cut up". At the trial the girls saw another friend of W sitting in the public gallery and, fearful for their safety, said they could not identify the man responsible for the assault. They were subsequently charged with perjury. The Court of Appeal quashed their conviction; although DD were protected during the trial the danger would have persisted afterwards. R v Hegarty  Crim LR 353, CA D was convicted of robbery, and claimed to have acted under duress. He sought to bring psychiatric evidence to show that he had a grossly elevated neurotic state, and was emotionally unstable and therefore more likely to yield to threats than most people. The trial judge refused to admit this evidence and D was convicted. Dismissing his appeal, the Court of Appeal said D was to be compared with an ordinary person of the same age, sex and physical health as himself, but otherwise "normal". His mental instability was not to be ascribed to the ordinary person of reasonable firmness, and the judge had been right to exclude evidence of it. R v Bowen  4 All ER 837, CA D was charged with obtaining services (viz, credit) by deception, and pled duress: he had been threatened that his home would be petrol-bombed if he did not provide various electrical goods. Dismissing his appeal against conviction, the Court of Appeal said it was not necessary for the jury to take into account D's low intelligence (short of mental impairment) when considering the effect of the threats on a reasonable person. Stuart-Smith LJ suggested the principles could be summarised as follows:  D's vulnerability or timidity are not to be ascribed to the reasonable person for the purposes of the objective test.  D may be in a category of persons that the jury might think were less able than others to resist threats: for example, young people, possibly women (though many women might disagree), pregnant women afraid for their unborn child, persons with physical disabilities inhibiting their self-protection, or persons with a recognised psychiatric disorder supported by medical evidence.  Characteristics relevant in provocation because they related to the nature of the provocation (for example, D's homosexuality) would not necessarily be relevant in duress, and characteristics due to self-abuse (such as drunkenness) can never be relevant. R v Abdul-Hussain & others  Crim LR 570, CA Six Shi'ite Muslims DD living in Iraq hijacked an aeroplane bound for Jordan and forced it to fly to Britain, where they surrendered peacefully after a few hours. At their trial they claimed they were in fear of their lives as opponents of the existing Iraqi regime, but the judge said this threat was not imminent at the time of the hijacking and refused to put this defence to the jury. Allowing DD's appeal, Rose LJ said the defence of duress was available in circumstances such as these: they did not have to wait for the knock on the door. Obiter, there is an urgent need for legislation to clarify the scope of this defence, which has developed on a case-by-case basis. R v Safi & others (2003) Times 10/6/03, CA DD were charged with hijacking offences and pled duress. The Crown were able to show that there was in fact no threat to their lives, and on this basis the jury convicted. Re-affirming Graham and allowing DD's appeal, Longmore LJ said the question is whether there was something that DD reasonably believed to be a threat. Once it is accepted that duress applies to hijacking cases, it must apply to the same extent as analogous cases, such as provocation and self-defence, where a defendant is entitled to rely on facts as he believed them to be. [Quaere: if this is the analogy, need the defendant's belief be reasonable?] The defence is not available to a person who voluntarily exposes himself to the risk of a relevant threat, either by joining a gang known to engage in violence, or by putting himself at risk in some other way. R v Fitzpatrick  NI 20, CCA (NI) D was a member of the IRA who shot and killed a man during a robbery, and was charged with murder. His defence was that he had taken part unwillingly: when he had tried to resign from the IRA serious threats had been made against himself and his parents. Lord Lowry CJNI said the defence must fail; a person who joins an illegal organisation with criminal objectives and coercive methods cannot rely on the duress to which he has voluntarily exposed himself. R v Sharp  3 All ER 103, CA D joined a gang who carried out a series of armed robberies at sub-post offices. In the last of these robberies the subpostmaster was shot and killed by X, and all the gang were charged with murder. D's claim that he acted under X's duress was rejected by the judge and D was convicted of manslaughter. His appeal was dismissed; Lord Lane CJ said where a person voluntarily and with knowledge of its nature joined a criminal organisation which he knew might bring pressure on him to commit an offence, and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress. R v Shepherd (1987) 86 Crim App R 47, CA D was a member of a gang of shoplifters. At his trial for burglary he raised the defence of duress, claiming he had been threatened with violence against himself and his family when he tried to give up. The judge withdrew this defence from the jury and D was convicted. The Court of Appeal allowed D's appeal, and said that while a person who joins a paramilitary organisation or a gang of armed robbers must expect to be threatened if their nerve fails them, the same is not necessarily true of every criminal enterprise. The jury should at least have been invited to consider whether D could be said to have taken the risk of violence simply by joining a gang whose activities were not overtly violent; they might well have convicted still, but should at least have been given the chance to decide. R v Heath  Crim LR 109, CA A man D was charged with possessing cannabis with a street value of £300k, with intent to supply. His defence was that he was a heroin user and had become indebted to his own supplier, who had threatened serious injury if he did not assist. Dismissing his appeal, the Court of Appeal said he had voluntarily put himself in a position where he knew he was likely to be threatened, and so could not rely on duress as a defence. R v Baker & Ward  2 Cr App R 335, CA DD were charged with robbery with an imitation firearm, and claimed duress. Quashing their convictions because of inadequate jury directions and and ordering a new trial, Roch LJ said there are two established limitations to the defence of duress: (1) a man must not voluntarily put himself in a position where he is likely to be subject to compulsion (e.g. by joining a violent gang or by undertaking criminal activities such as drug dealing), and (2) if a person can avoid the effects of duress by escaping, without damage to himself or a member of his immediate family, he must do so. In each case, the defendant's conduct is to be compared with that of a reasonable person. R v Z (2003) unreported A man D was charged with aggravated burglary; he admitted the facts but claimed duress. Allowing his appeal, the Court of Appeal said it is not enough that he voluntarily associated with criminals who might make threats to make him commit some crime: the judge should have directed the jury to consider whether he could have forseen that he would be likely to be subject to threats to commit crimes of the kind and/or seriousness in question. The defence of duress is not available to any participant charged with murder or attempted murder, whether as principal or accessory. R v Howe  1 All ER 771, HL D took part with others in two separate murders, and on a third occasion the intended victim escaped. D's claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three, and appealed. The House of Lords reviewed the authorities, and then exercised its power under the 1966 Practice Statement to depart from the decision in Lynch. No participant (whether principal or accessory) can claim duress in defence to a murder charge. The justification for this decision is that the law should deny a man the right to take an innocent life even at the price of his own (per Lord Griffiths), but should rather set a standard of heroism and self-sacrifice which ordinary men and women should be expected to observe (per Lord Hailsham). R v Gotts  1 All ER 833, HL D's father ordered him to kill his mother and threatened to shoot him if he did not do so. D therefore stabbed his mother and injured her seriously, but did not actually kill her. He was charged with attempted murder, and claimed duress as a defence, saying he had done it only because his own life was in danger, but the trial judge refused to allow this defence to go to the jury. Dismissing D's appeal and applying a dictum of Lord Griffiths in Howe, the House decided 3-2 that duress is not available to a person charged with attempted murder (nor, per Lord Lowry, with "most kinds of treason"). The main difference between murder and attempted murder is the pure chance that the victim dies or lives, and attempted murder may be morally worse in requiring an intention to cause death and no less. The Law Commission propose in their draft Criminal Law Bill: (1) No act of a person constitutes an offence if the act is done under duress by threats. (2) A person does an act under duress by threats if he does it because he knows or believes - (a) that a threat has been made to cause death or serious injury to himself or another if the act is not done, and (b) that the threat will be carried out immediately if he does not do the act or, if not immediately, before he or that other can obtain effective official protection, and (c) that there is no other way of preventing the threat being carried out, and the threat is one which in all the circumstances (including any of his personal characteristics that affect its gravity) he cannot reasonably be expected to resist. It is for the defendant to show that the reason for his act was such knowledge or belief as is mentioned in paragraphs (a) to (c). (4) This section does not apply to a person who knowingly and without reasonable excuse exposed himself to the risk of the threat made or believed to have been made ... it is for him to show that he did not. Necessity The law appears to recognise in general terms a limited defence of necessity, but (perhaps to avoid abuse) fails to define it very clearly. In a few special cases such a defence is provided by statute (e.g. for drivers of fire engines on emergency calls to exceed the speed limit) but for the most part it is a creature of the common law. Mouse's Case (1608) 77 ER 1341, KB Some fifty people were in a barge en route from Gravesend to London. A storm arose and the barge was in danger of sinking, so a number of passengers threw various items overboard to lighten the ship. Mouse was the owner of some of this cargo, and brought a civil action for trespass to goods. The court said the action had been justified by the danger to life. R v Bourne  3 All ER 615, McNaghten J A 14-year-old girl was pregnant as the result of rape, and a doctor D carried out an abortion to protect the girl from serious injury. The judge suggested that the word "unlawfully" in s.58 of the Offences Against the Person Act 1861 might be taken to exclude the case in which the act was done solely to preserve the life of the expectant mother; that, he said, had long been the common law position. Moreover, if the risk to the woman's health is sufficiently grave, an act done to preserve her health may be regarded as being to preserve her life even though she may not be in imminent danger of death. The jury found D not guilty. F v West Berkshire Health Authority  2 All ER 545, HL A 36-year-old woman with a mental age of 5 had formed a close relationship with a male patient in the same hospital. Doctors agreed that the psychological effects of pregnancy would be seriously damaging to her, and (since she could not cope with normal methods of contraception) sought a declaration that they would be acting lawfully in sterilising the woman without obtaining her consent, which she was mentally incapable of giving. Lord Brandon said that where an adult patient is unable to give or refuse consent - for example, because he is unconscious or mentally disabled, the doctor has a right - perhaps even a duty - to give treatment that is in the patient's best interests, to save his life or to prevent deterioration or ensure improvement in his physical or mental health. Lord Goff agreed, and said obiter that a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong. Re T  4 All ER 649, CA A young woman was suffering from pleurisy following a road accident, but (being a Jehovah's Witness) refused a blood transfusion. Her condition deteriorated and she was taken into intensive care; her doctors, supported by her father, now sought to override her refusal in order to save her life. Lord Donaldson MR granted the declaration sought because there was doubt as to whether the patient had known the full implications of her decision, but said the individual's right to self-determination is paramount. An adult patient with no mental incapacity has an absolute right to choose to consent or refuse consent to medical treatment, even if refusal may lead to death, and no matter whether the reasons for the choice are rational, irrational, unknown or non-existent. Re A (Male sterilisation)  1 FLR 549, CA The Court of Appeal upheld a judge's ruling that a 28-year-old man with Down's Syndrome should not be given a vasectomy to which he was unable to give informed consent. His 63- year-old mother had sought a court order allowing this treatment, to relieve her of the need to maintain close supervision over her son's sexual activities. Butler-Sloss P said such an operation would not be in the patient's best interests, and that is the crucial test. Duress of circumstances Within the past few years, necessity has been largely replaced by the new defence of "duress of circumstances". A person acts under duress of circumstances if he does so only to avoid death or serious personal injury (to himself or another), perhaps caused by something other than a direct threat by a third party. R v Willer (1986) 83 Cr App R 225, CA D was charged with reckless driving after driving at about 10 mph through a pedestrian precinct to escape from a gang threatening violence to him and his passengers, and pled necessity. The Assistant Recorder said this defence did not exist, and D changed his plea to guilty, but then appealed. The Court of Appeal doubted whether D's actions had in fact been reckless, but said duress should in any case have been left to the jury. This was not the usual sort of duress - the gang had not told D to drive on the pavement - but duress of circumstances could be used even where necessity could not. R v Martin  1 All ER 652, CA D was charged with driving while disqualified; his defence was that his stepson was late for work and at risk of losing his job, and D's wife had threatened to kill herself if D did not take the boy to work. Allowing D's appeal against conviction, Simon Brown J said English Law does recognise a limited defence of necessity: most often it arises as duress, but duress can result from circumstances rather than from the threats of others. The defence is available only if D can objectively be said to have acted reasonably and proportionately to avoid a threat of death or serious injury, and it is then for the jury to say whether on the basis of D's reasonable belief he had good cause to fear death or serious physical injury to himself or another, and whether a sober person of reasonable firmness, sharing D's other characteristics, would have responded to the situation as D did. The Court doubted whether the jury would have accepted D's story (particularly since there was another driver in the house), but they should have been allowed to consider it. DPP v Bell  RTR 335, Crim LR 176, DC D became involved in a serious argument and, fearing serious personal injury, ran to his car (pursued by several others) and drove away. He was subsequently found to be over the blood-alcohol limit and was prosecuted; his conviction by magistrates was overturned on appeal to the Crown Court, and the Divisional Court upheld the latter. It was significant, they said, that D had driven "only a short way" (the actual distance not being reported), since his defence would have ceased to exist had he continued to drive after the duress of circumstances had evaporated. R v Pommell  2 Cr App R 607, CA Police searching D's house at about 8 am one morning found him lying in bed with a loaded gun in his hand. His defence was that someone had come to see him during the night, carrying the gun with which he planned to kill someone. D persuaded the visitor to give him the gun and the visitor left; D decided to give the gun to the police in the morning. Allowing D's appeal against his conviction for possessing a firearm, and ordering a new trial, Kennedy LJ said the defence of duress of circumstances was available in crimes other than road traffic offences - in fact, in any offence other than murder, attempted murder, and some form of treason. A person committing an offence under duress of circumstances must desist from doing so as soon as he reasonably can, and it should have been left to the jury to decide whether the delay of some seven hours between D's acquiring the gun and the arrival of the police robbed him of the defence. R v Rodger  1 Cr App R 143, CA DD escaped from prison, where they were serving life sentences for murder. At their trial for breaking prison, their defence was duress of circumstances, namely, that they were considering suicide and responded to this threat of death or serious injury. Dismissing their appeals against conviction, Sir Patrick Russell said the decided cases on "duress of necessity" shared a common feature, that the causative factor was extraneous to the defendant. A subjective element such as the defendant's own thoughts cannot be used to ground such a defence. Where the threat is not an immediate threat of death or serious injury, the courts are very reluctant to accept necessity or duress of circumstances. Southwark BC v Williams  2 All ER 175, CA A homeless family squatted in an empty Council house, and resisted the Council's efforts to evict them. Allowing the Council's appeal, Lord Denning MR said that if hunger were allowed as an excuse for stealing, or homelessness as a defence to trespass, it would open a door through which all kinds of lawlessness and disorder would pass; each would say his need was greater than the next man's. DPP v Harris  1 Cr App R 170, DC A police officer D drove through a red light in pursuit of a car believed to be going to an armed robbery at which death or serious injury might have occurred. D collided with another vehicle, and was charged with driving without due care and attention. On appeal by the prosecutor, McCowan LJ said D's plea of necessity could not succeed, but declined to remit the case to the justices because two years had passed since the offence. The Road Traffic Acts gave statutory authority to police officers (and some others) to ignore traffic signals, and displaced the common law defence, but could succeed only if there was no likelihood of danger. Even if the common law defence had been available, D would have needed to act reasonably and proportionately to the circumstances (e.g. by pausing for a few seconds to check the road was clear) if it was to succeed. R v Cichon  Crim LR 918, DC A man D was charged with having a fighting dog unmuzzled in public; his defence was that the dog was sick and/or choking, and that he removed the muzzle to allow it to breathe. Upholding his conviction, Balcombe LJ said a defence based on necessity could not succeed. The Dangerous Dogs Act 1991 was a draconian measure, and it was clear that Parliament had not envisaged any exceptions to its requirements. The dog's illness posed no threat of death or serious injury to any person while it was muzzled, and neither statute nor common law allowed a dog owner to make a value judgement as between the well-being of his dog and the safety of the public. R v Blythe (1998) unreported A man D was charged with cultivating cannabis with intent to supply it to his terminally ill wife W, who suffered severe pain from multiple sclerosis. Judge Hale told the jury at that the defence of duress of circumstances was not available in such a case, even though D feared W might commit suicide, but the jury disregarded this instruction and found D not guilty. D was convicted of simple possession and fined £100. (Daily Telegraph news report, 4/4/98) However, s.5(2) of the Criminal Damage Act 1971 expressly provides a lawful excuse where a person damages property to prevent damage to other property, honestly (but not necessarily reasonably) believing this to be necessary and reasonable in the circumstances. Jaggard v Dickinson  3 All ER 716, DC A woman D broke into a house under the drunken mistake that it belonged to a friend. Quashing her conviction for causing criminal damage, the Divisional Court said the Act provided an express defence for anyone who believed the person whom she believed to be the owner would have consented to the damage. Although D's mistake (resulting from her intoxication) was not a reasonable one, Parliament had provided a defence based on honest belief, and the usual common law rules did not apply. R v Melchett (2000) unreported A large number of Greenpeace supporters entered a field and destroyed part of a crop of genetically modified maize. They were charged with causing criminal damage, but were acquitted when a second jury (the first having been unable to reach a verdict) accepted their defence that they honestly believed the destruction was reasonable and necessary to prevent damage to other crops. Neither necessity nor duress of circumstances is available as a defence in cases of murder, except perhaps in very rare cases. R v Dudley & Stephens (1884) LR 14 QBD 273, CCR Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder. The Court for Crown Cases Reserved upheld their conviction (though their sentence of death was later commuted to six months' imprisonment); necessity can never be a defence to murder. At the coroner's inquest into the sinking of the Herald of Free Enterprise, a witness (a corporal in the army) gave evidence that as passengers were seeking to escape from the stricken ferry, one man froze in panic on a ladder offering the only escape for a number of people. When after ten minutes he had failed to respond to reason, the corporal ordered that the man be knocked off the ladder so that the others could escape; this was done and the man was never seen again. No one was ever prosecuted in respect of this man's death, but it appears that the corporal (and the person who carried out the order) would have been guilty of murder had the law been applied strictly. Re A (Children)  4 All ER 961, CA "Siamese twins" Jodie and Mary were joined in such a way that Jodie's heart and lungs were providing oxygenated blood for both; medical opinion broadly agreed that both would die in three to six months - or possibly slightly more - if nothing was done. Doctors sought the leave of the court to separate the twins, giving Jodie a good chance of a fairly "normal" life but causing the immediate death of Mary. The twins' parents opposed the application for religious reasons. The Court of Appeal affirmed Johnson J and gave leave for the operation to proceed. Brooke LJ, quoting Sir James Stephen more than a hundred years earlier, said there are three conditions for necessity to operate as a defence: (i) the act is needed to avoid inevitable and irreparable evil, (ii) no more should be done than is reasonably necessary for the purpose to be achieved, and (iii) the evil inflicted must not be disproportionate to the evil avoided. These conditions were satisfied in the instant case. The decision in R v Dudley & Stephens (endorsed by the House of Lords in R v Howe was distinguishable: that case involved the taking of an innocent life, while in the instant case the life to be taken was that of a person who (although morally blameless) was slowly killing her sister and who was already "designated for death". R v Shayler  1 WLR 2206, CA A former MI5 officer charged with disclosing information under the Official Secrets Act 1989 sought to rely on the defence of necessity (or duress of circumstances) and indicated at the pre-trial hearing that he would be putting forward a defence of necessity, arguing that his disclosures had been necessary to ensure that certain malpractices were ended. The trial judge and the Court of Appeal rejected any possibility of such a defence: the defence of necessity, said Lord Woolf CJ, is available only where the defendant's act was a reasonable and proportionate response to a threat of some greater evil directed towards the defendant or towards another person or persons for whom the defendant was in some way responsible. It is not available where the defendant claimed merely that someone, somewhere might some day have suffered if he had not acted as he did. [On D's further appeal, the House of Lords declined to deal with this particular point, which they said should have been left to be argued at the main trial.] The Law Commission in their draft Criminal Law Bill propose to subsume necessity in a new and enlarged defence of duress of circumstances. This would cover all cases where a person acts because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another. The wording of their proposed clause is almost the same as that proposed for duress by threats. Superior orders There is no special defence available to a person who acts under orders given him by his superior (whether a superior officer in the armed forces or police, or an employer or other superior), though in extreme circumstances such orders might constitute duress, or might lead the defendant to make a mistake of fact. Johnson v Phillips  3 All ER 682, DC A motorist D was convicted of obstructing a police officer in the execution of his duty, after refusing to reverse the wrong way along a one-way street to allow an ambulance to pass. Upholding his conviction, the Divisional Court said that a constable in the execution of his duty may direct other persons to disobey traffic regulations if that is reasonably necessary for the protection of life and property. By implication, it would appear that a motorist who obeyed such a direction would have a defence of superior orders if subsequently charged with an offence, but the Court did not make this point explicit. Blake v DPP  Crim LR 586, DC A clergyman charged with criminal damage (by writing a biblical quotation with a marker pen on a concrete pillar outside the Houses of Parliament) claimed that he was acting under the instructions of God in protesting against the Gulf War. The Divisional Court ruled that this belief, no matter how honestly held, could not amount to a defence. Yip Chiu-cheung v R  2 All ER 924, PC (Hong Kong) An undercover drug enforcement officer X agreed to take part in a smuggling operation with the intention of carrying the drugs, with the purpose of breaking the gang. A real member D of the operation appealed against his conviction for conspiracy, arguing inter alia that since X was a public official acting under orders he was not truly a co-conspirator, so that the indictment was fatally flawed. Dismissing the appeal, the Privy Council said the fact that X would not in practice have been prosecuted was immaterial: it is no excuse for an offender to say that he acted under the orders of a superior officer. R v Clegg  1 All ER 334, HL A soldier D at a checkpoint in Northern Ireland shot and killed a teenage "joy-rider" travelling in a car that failed to stop, and was charged with murder. Dismissing his appeal against conviction, Lord Lloyd said obiter that the general defence that the defendant was acting in obedience to orders was unknown to English law. [An appeal was subsequently allowed on other grounds.] The common law defence of coercion, as modified by the Criminal Justice Act 1925 s.47, is available only to a wife who commits a crime in the presence of her husband. If she can show (the burden being on her) that she acted only on his orders and/or strong moral persuasion, and not on her own initiative, she has a complete defence to any charge except murder or treason. R v Shortland  Crim LR 893, CA A wife D was convicted of making a false statement to procure a passport. Allowing her appeal against conviction, Kennedy LJ said D's defence of coercion should have been put to the jury. This did not necessarily mean physical force, or the threat of force: it would have been enough if D's will had been overborne by that of her husband. R v Fitton (2000) unreported Magistrates in Manchester acquitted a woman of driving with excess alcohol even though she had been three times over the limit. She had been out for a meal with her husband, and when he insisted she drive home she was too scared to refuse. (News reports 23/12/00) This defence is a relic of the days when women were presumed to be entirely dependent on their husbands and to have no minds of their own, and the Law Commission have proposed its abolition. Entrapment It is no defence for a defendant to say that he was enticed into crime by police officers or other agents provocateurs; in reality, that is sometimes the only way in which a conviction is ever likely to be obtained. In extreme cases the court may exercise its discretion to exclude evidence obtained unfairly, or may impose a nominal penalty, but the general tendency is to uphold the forces of law and order. R v McEvilly & Lee (1973) 60 Cr App R 150, CA An undercover police officer H received information about a proposed theft; he met the gang DD and offered to act as their fence. The Court of Appeal upheld DD's conviction, saying there was no reason to exclude H's evidence for entrapment so long as an offence of that sort (even if not the same in every detail) was going to be committed anyway. R v Sang  2 All ER 1222, HL D was charged with conspiring to utter forged banknotes, but claimed he had been induced to commit the offence by a police informer who had offered to put him in touch with a buyer. Upholding D's conviction, the House of Lords said entrapment is not a defence known to English law. A man who intends to commit a crime and actually commits it, said Lord Salmon, is guilty of the offence whether or not he has been persuaded or induced to commit it, no matter by whom. DPP v Marshall  3 All ER 683, DC Two plain clothes police officers XX bought four cans of lager and a bottle of wine from D, in order to obtain evidence that DD was not observing the requirements of his licence allowing him to sell by wholsesale only. The magistrates excluded XX's evidence under s.78(1) of the Police and Criminal Evidence Act 1984 as likely to have a serious effect on the fairness of the trial, but the Divisional Court said this decision was wrong in law: there was nothing unfair about using evidence obtained in this way. Tesco v Brent LBC  2 All ER 718, DC In order to obtain evidence that AA were selling age-restricted videos to children, a trading standards officer sent a 14-year-old boy into AA's shop with instructions to buy such a video. The Divisional Court dismissed AA's appeal made on other grounds, but AA did not even think it worth arguing the possible point on entrapment. Williams v DPP  3 All ER 365, DC In an anti-theft operation, police officers XX left an unattended, unlocked van with dummy cartons of cigarettes in the back; when DD tried to take the cartons they were arrested and charged under s.9(1) of the Criminal Attempts Act 1981. Their conviction was upheld by the Divisional Court: the police had done nothing to force, persuade or encourage them to commit the crime, so there was no reason to exclude the evidence. R v Tonnessen (1998) Times 3/3/98, CA A heroin addict D was approached by two journalists who (without revealing their identity) asked her to obtain heroin for them. She did so, and the journalists subsequently pubished her name and picture, as a result of which she was assaulted and threatened with death. D pled guilty to supplying a class A drug and was sentenced to twelve months' imprisonment, taking account of her guilty plea, her clean record except for two minor "possession" offences, and her attempts to give up her habit. Reducing the sentence to six months' imprisonment, Otton LJ said the judge should also have regarded the entrapment (particularly entrapment by journalists rather than police officers), and the subsequent humiliation and threats, as mitigating factors. R v Looseley  4 All ER 897, HL In two conjoined appeals, the defendants had been charged with supplying heroin to undercover police officers: in one case the trial judge had admitted evidence obtained in this way and in the other the judge had excluded it. Affirming both decisions, the House of Lords said it would be unfair to allow evidence obtained by entrapment where a person who would not otherwise have committed this crime had been incited or pressured into doing so by a police officer, but there can be no such objection where a police officer posing as a member of the public merely provided an ordinary opportunity for crime of which the defendant took advantage.
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