Mitigating Circumstances in Criminal Act - Case Study Example

The Defenses Introduction The general rule under the criminal law is every person shall be liable to punishment for the guilty conducted by him. But the law has given some excuse in certain circumstances like duress, necessity, mistake consent and private and public defenses. To what extent these defenses can be enjoyed under the protection of the law, whether the law has put any restrictions on these defenses etc. are some relevant questions regarding this area? To analyze these fields, firstly we shall go through these defenses, its relevance and limitations. 1. Consent In A-Gs Reference (1) the Court of Appeal held that, a persons consent is irrelevant and cannot prevent criminal liability for an offence if actual bodily harm was intended and/or caused, subject to some exceptions. This strict rule was based on the view that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. The Court of Appeals views were applied the House of Lords in R v Brown and Others (2). There are some exceptions to this defense like reasonable surgical interference, a properly conducted game or sport, and tattooing and ear-piercing. A person can validly consent to the risk of being unintentionally harmed. In R v Aitkin and Others (3) the victims participation in practical jokes played on RAF companions was accepted as evidence suggesting that he too could become a victim and consented to this. 2. Duress The definition of the Duress well mentioned in the case Attorney-General v Whelan (4) that the threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal. The defense must be based on threats to kill or do serious bodily harm. If the threats are less terrible they should be matters of mitigation only Elements of duress . In DPP for N. Ireland v Lynch (5), it was held that the law would not regard threats to a persons property as a sufficient basis for the defense. Here the immediate threat should be in such a nature that it is to be operated upon the accused at the time that the crime was committed. ------------------------------------------------------------------------------------------------------------ 1) A-Gs Reference (No 6 of 1980) [1981] 2) R v Brown and Others [1993] 2 All ER 75 3) R v Aitkin and Others [1992] 1 WLR 1066 4) Attorney-General v Whelan [1934] IR 518, per Murnaghan J (Irish CCA) 5) DPP for N. Ireland v Lynch [1975] AC 653, 2 In R v Hudson and Taylor (6), it was held that it was always open to the crown to shown that the defendants had not availed themselves of some opportunity to neutralize the threats, and that this might negate the immediacy of the threat, regard had to be had to the age and circumstances of the accused. But it is to be remembered that a defendant who joins a criminal association which could force him to commit crimes can be blamed for his actions. This rule was clearly explained in the case R v Hudson and Taylor. From the scope of the term duress the law predisposed to put forward two types of test in this regard. The Subjective test enumerates whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger and the Objective test inquires that would a sober person of reasonable firmness sharing the defendants characteristics have responded in the same way to the threats? In R Vs graham (8) these test has been clearly defined while the conviction of the accused. This was subsequently approved by the House of Lords in R v Howe (9). In law the admissible characteristics in this regard are the person who is less able to resist pressure than people not within that category. For example, age; possibly sex; pregnancy; serious physical disability, which might inhibit self-protection; recognized mental illness or psychiatric condition .In R v Bowen (10), the Court of Appeal held that a low IQ, short of mental impairment or mental defectiveness, was not a relevant characteristic since it did not make those who had it less courageous or less able to withstand threats and pressure than an ordinary person. Limitations Duress is considered to be a general defense in criminal law, but the law has put forward some limitations on the complete enjoyment of this defense i.e, there are a number of offences in relation to which duress cannot be raised as a defense. In R v Howe and Others (11) it was held that duress would not be available to a defendant who committed murder either as principal or accomplice. In R v Gotts (12), The House of Lords held that the defense of duress could not be raised where the charge was one of attempted murder since the law regards the sanctity of human life and the protection thereof as of paramount importance. ------------------------------------------------------------------------------------------------------------ 6. R v Hudson and Taylor [1971] 2 QB 202 7. R v Hudson and Taylor [1971] 2 QB 202 8. R Vs graham [1982] 1 WLR 294 9. R v Howe [1987] AC 417 10. R v Bowen [1996] Crim LR 577 11. R v Howe and Others [1987] AC 417 12. R v Gotts [1992] 2 AC 412 3 3. Duress of circumstances And Necessity Recently the courts have begun to show a willingness to allow the defense of duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury: In R v Willer (13), the defendant had driven recklessly to escape from a crowd of youths who appeared intent upon causing physical harm to the passengers in his car; in R v Conway (14), the defendant had driven recklessly to protect his passenger from what he had honestly believed was an assassination attempt. In both cases the Court of Appeal ruled that the defendants should have been permitted to put the defense of necessity before the jury, given the apparent threat of death or bodily harm created by the circumstances. Necessity arises where a defendant is forced by circumstances to transgress the criminal law. The generally accepted position is that necessity cannot be a defense to a criminal charge. In R v Dudley and Stephens (15) the judges of the Queens Bench Division held that the defendants were guilty of murder in killing and eating of the cabin boy in order to rescue the defendants from death of them by the starvation and stated that their obvious necessity was no defense. The defense of necessity has been permitted to operate under various circumstances like medical cases. In R v Bourne(16), it was held that that the defendant is not guilty in a case of an abortion on a young girl with the consent of the parents as he did not act” unlawfully"(17), where he acted in good faith, in the exercise of his clinical judgment. 4. Private defense and Public defense Sec.3(1) of the Criminal Law Act 1967 provides that a person may use such force as it is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. Reasonable force The general principle is that the law allows only reasonable force to be used in the circumstances and, the reasonable force is what the accused believed them to be reasonably or not. In Palmer v R (18), some points have been laid down on behalf of this. ------------------------------------------------------------------------------------------------------------ 13. R v Willer 14. R v Conway [1988] 3 All ER 1025 15. R v Dudley and Stephens (1884) 14 QBD 273 16. R v Bourne [1939] 1 KB 687 17. S58 Offences against the Person Act 1861(Abortion Act 1967) 18. Palmer v R [19 4 A person who is being attacked should not be expected to "weigh to a nicety the exact measure of his necessary defensive action". If the jury thought that in the heat of the moment the defendant did what he honestly then that would be strong evidence that only reasonable defensive action had been taken. The third point is, the defense of self-defense will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defense. Imminence or immediacy It is not absolutely necessary that the defendant be attacked first. In Attorney- Generals Reference (20), The Court of Appeal held that there was evidence on which a jury might have decided that the use of the petrol bombs would have been reasonable force in self-defense against an apprehended attack. If so, the defendant had the bombs for a "lawful object" and was not guilty of the offence charged. Mistake as a self defense It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person.In R v Williams (21) and Beckford v R (22), it was held that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening. 5. Intoxication Self-induced intoxication will operate as a partial or complete defense to crimes of specific intent, if a defendant can show that he lacked the necessary specific intent due to drink or drugs. Evidence of intoxication negativing mens rea is a defense only to crimes requiring specific intent. In DPP v Majewski(23), House of Lords held that self- induced intoxication can be raised as a defense to crimes of specific intent, but not to crimes of basic intent. Involuntary intoxication is confined to cases where the defendant did not know he was taking alcohol or an intoxicating drug at all, as where his food or drink is laced without his knowledge. In R v Kingston (24) the House of Lords has held that involuntary intoxication is not in itself sufficient to negative the necessary mental element of an offence unless the intoxication is such that the defendant could not form any intent at all. ------------------------------------------------------------------------------------------------------------ 19.. Attorney-Generals Reference (No 2 of 1983) [1984] 2 WLR 465 20. R v Williams (Gladstone) (1984) 78 Cr App R 276(21 21. Beckford v R [1988] AC 130(22) 22. DPP v Majewski [1977] AC 23. R v Kingston [1994] 3 All ER 353 5 6. Insanity An accused may have committed a crime when actually insane. This issue is covered by the MNaghten rules (25) which give the priority of insanity in the legal sense and not in the medical or psychological sense. 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 what he was doing was wrong." Even though the defense of insanity is rare in cases, it has also reflected the narrow test of legal responsibility under the MNaghten Rules and the existence since the Homicide Act 1957 of the defense to murder of diminished responsibility. Before that Act accused persons generally raised the defense of insanity only in murder cases, but since then a plea of the wider defense of diminished responsibility has been far more common in such cases because, if that defense succeeds, the accused may be given a determinate prison sentence. Disease of the mind It seems that any disease, which produces a malfunctioning of the mind, is a disease of the mind, and need not be a disease of the brain. In R v Kemp (26).The House of Lords held that "Disease of the mind" does not mean only a physical defect of the brain. Keeping the same view, in R v Sullivan (27) it was held that where a disease of the body affects the mind resulting in violence and is likely to recur, it will be classed as insanity, thus enabling the courts to order the detention of the defendant in societys interest. Defect of reason The disease of the mind must have given rise to a defect of reason which had one of two consequences: either (a) the defendant did not know the nature and quality of his act, i.e. it covers the situation where the defendant does not know what he is physically doing. or (b) he did not know his act was wrong. The phrase "defect of reason" should be in the sense that the powers of reasoning must be impaired, not merely confusion or absentmindedness. It was clearly defined in the case R v Clarke (28). In R v Windle (29) the scope of knowledge was given in the way that if the defendant knew what he was doing then he will still be insane if he did not know that he was doing something legally wrong. ------------------------------------------------------------------------------------------------------------ 24. Richard Card, Card, Cross and Jones: Criminal Law (1995), Oxford University Press p140 25. R v Kemp: [1957] 1 QB 399 26. R v Sullivan [1984] AC 156 27. R v Clarke [1972] 1 All ER 219 28. R v Windle (1986) 83 Cr App R 225 6 In M’kaughten”s case (30) it was concluded that if he labors under such partial delusion only, and is not in other respects insane, "he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real". 7. Automatism Automatism applies to the situation where the defendant is not legally insane but because of some external factor i.e inability to control ones acts resulting from the operation of some external factor like concussion, the administration of an anesthetic or other drug, or hypnosis.etc.(31) .The scope of this explained in R v Quick (32), or as stated in Bratty v Attorney-General for N. Ireland (33), where something was done by the defendants muscles without the control of his mind, such as a spasm, or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking. This defense is not available where the defendants mind is functioning, although imperfectly. This approach was recently followed by the Court of Appeal in Attorney-Generals Reference (34) who insisted that automatism is only available where there is a total loss of voluntary control. Self induced automatism In R v Bailey (35) the scope of the term self induced automatism has been given. It is held in this case that a defendant may be prevented from raising the defense of automatism, where there is evidence to show that he was in some way at fault in bringing about the state of automatism. Conclusion Although the law has made some exceptions or limitations to restrict the persons to enjoy the defenses, the level of the leniency from the law towards these persons who are meant for this purpose, is high. The fact that the circumstance or events led them to do the offense can not be discarded. Former US Vice president and Republican Dan Quayle rightly said “I broke the law but there would have been worse consequences had I obeyed the law will not in itself lead to an acquittal".(36) ------------------------------------------------------------------------------------------------------------ 29. M’kaughten”s case,(1843) 10 C & F 200). 30. Smith and Hogan, Criminal Law, Eighth edition 1996, p40) 31. R v Quick [1973] QB 910 32. Bratty v Attorney-General for N. Ireland [1963] AC 386 33. Attorney-Generals Reference [1984] 2 WLR 465 34. R v Bailey [1983] 1 WLR 76 Bibliography Books and Authors 1. A, Ashworth, (2006) (5th ed) “Principles of Criminal Law” Oxford, Oxford University Press. ch.8 2. D, Ormerod, (2005) (11th ed) “Smith and Hogan: Criminal Law” Oxford, Oxford University Press: ch12 3. M, Jefferson, “Criminal law” (7th ed., London: Longman, 2005). ISBN: 1-4058-12257. 4. N, Padfield, (2006) (5th ed) “Criminal Law” Oxford, Oxford University Press. Chapter 5 5. J, Herring, (2006) (2nd Ed) “Criminal Law: Text, Cases and Materials” Oxford, Oxford University Press: Chapter 12 6. Michel Allen (2006) (8th ed) “Text Book On Criminal Law “: Oxford, Oxford University Press; Ch 6 7. Richard Card, Card, Cross and Jones: Criminal Law, (1995), Oxford, Oxford University Press p140 8. Russel Heaton (2006) (2nd ed) “Text Book On Criminal Law “Oxford, Oxford University Press: Ch 7, 8, 9 9. Smith and Hogan, “Criminal Law” (1996) p264, p207, p40 Case Books 10. Allen, M. Elliott & Woods “cases and materials on criminal law” (9th ed) London: Sweet & Maxwell, 2006). ISBN: 0-421-92450-0. 11. D, Ormerod, (2006) (9th ed) “Smith and Hogan: Criminal Law Cases and Materials” Oxford, Oxford University Press. Ch11 12. J.Dine, J.Gobert, W.Wilson (2006) (5th ed) “Cases and Materials on Criminal Law” Oxford, Oxford University Press: Part III; Ch.9 13. M, Molan,” Cases & Materials on Criminal Law”, 4th edition (2007), Cavendish Statutes 14. (Abortion Act 1967); S58 15. Glazebrook, P. Blackstone “statutes on criminal law 2005-6 (15th ed., Oxford: Oxford University Press, 2005). ISBN: 0-19-928316-8”. Table of cases 1. A-Gs Reference (No 6 of 1980) [1981] 2. Attorney-General v Whelan [1934] IR 518, per Murnaghan J (Irish CCA) 3. Attorney-Generals Reference (No 2 of 1983) [1984] 2 WLR 465 4. DPP for N. Ireland v Lynch [1975] AC 653, 5. DPP v Majewski [1977] AC 142 6. M’kaughten”s case ,(1843) 10 C & F 200). 7. Palmer v R [1971] AC 814 8. R v Aitkin and Others [1992] 1 WLR 1066 9. R v Bailey [1983] 1 WLR 760 10. Beckford v R [1988] AC 130(22) 11. R v Bowen [1996] Crim LR 577 12. R v Brown and Others [1993] 2 All ER 75 13. R v Bourne [1939] 1 KB 687 14. R v Clarke [1972] 1 All ER 219 15. R v Conway [1988] 3 All ER 1025 16. R v Dudley and Stephens (1884) 14 QBD 273 17. R v Gotts [1992] 2 AC 412 18. R Vs graham [1982] 1 WLR 294 19. R v Hudson and Taylor [1971] 2 QB 202 20. R v Howe [1987] AC 417 21. R v Kemp [1957] 1 QB 399 22. R v Kingston [1994] 3 All ER 353 23. R v Quick [1973] QB 910 24. R v Sullivan [1984] AC 156 25. R v Williams (Gladstone) (1984) 78 Cr App R 276 26. R v Willer (1986) 83 Cr App R 225 Read More