Criminal Defence Definition and Application

Introduction

The term ‘ criminal defence’ may be defined as:

“Any identifiable set of conditions or circumstances that provides sufficient reason why the accused ought not to be convicted of a particular offence.”

To present a defence in a criminal case therefore refers to the process of putting forward identifiable set of conditions or circumstances in a bid to provide sufficient reason why the accused should be found criminally blameless.

Defences To A Murder Case

A defence may be regarded either as a general or specific defence, a common law or statutory defence, or a complete or partial defence. A complete defence when successfully pleaded leads to an acquittal of the accused while a partial defence provides mitigating factors which if successfully pleaded will result in the reduction of the offence of murder to culpable homicide. Some of the defences that may be presented in a murder case include necessity, mistake, coercion, self defence and automatism.

Necessity

The defence of necessity seeks to negate the mens rea of the offence charged by illustrating that the accused person did not have the requisite ‘evil intention’ to commit the crime but was compelled to do so out of necessity. Under Scots law, the defence was first well expounded in the case of Moss v Howdle. In this case the court set the minimum requirement for a defence of necessity, that is, ‘the accused acted in the face of immediate danger of death or great bodily harm’. This was demonstrated in the case of Tudhope v Grubb. In this case, the accused was charged under section 6(1) of the Road Traffic Act 1972 with attempting to drive with a high alcohol content in his blood. It emerged that he had been trying to escape from three men who had already assaulted and injured him and were now trying to smash in his car windows. It was held by the sheriff that the defence of necessity had been successfully established since the accused had been trying to save himself from further injury. The accused was therefore acquitted. It is important to note that as far as the defence of necessity is concerned, the danger need not arise from the threats of others. It could be as a result of natural forces or human conduct. What is necessary is that there must have been a threat of imminent death or serious injury to the accused or to a third party. As held in Moss v. Howdle, the threat must have been the compelling force behind the accused breaking the law. Further, the accused’s actions must have been necessary to prevent the threat. This was reiterated in the case of Dawson v Dickson. In this case Lord Sutherland stated that the defence of necessity only arose in instances where the accused was faced with a dilemma of saving life or avoiding serious bodily harm on the one hand and breaking the law on the other. In this case the defence would be available to the accused if the accused decided to break the law rather than risk a life.

In the Lord Advocate’s Reference (No. 1 of 2001), an objective test for the defence of necessity was established. As stated by Lord Posser:

“ the defence will only be available if a sober person of reasonable firmness, sharing the characteristics of the actor, would have responded as he did”.

Although so far there has been no decided case on whether the defence of necessity is available for murder charges under Scots law, the English cases of Dudley & Stephens and Re A may offer some insight. In the former case, the court held that the defence of necessity could not apply in murder cases. However, in the latter case which is more recent, exemplified a situation where the defence of necessity could apply in a murder charge. In this case, the court allowed the separation of conjoined twins even though it had been made clear that the separation would lead to the death of one of the twins who had organ function. However, the court held that the procedure was necessary to save the life of the stronger twin. This would essentially constitute murder within the definition of murder under English law. The court however held that the defence of necessity would be available to the doctors but restricted the application of the defence to the facts of the case.

The defence of necessity may therefore be available in a murder case but only to the extent that the circumstances discussed above exist and even then depending mainly on the facts of the case.

Coercion

The defence of coercion is intended to demonstrate that the accused person was compelled or coerced, by threats to his person by a third party, to commit a crime. The defence therefore while admitting the actus reus, seeks to negate the mens rea of the crime by averring that were it not for the threat, the accused would not have acted in the way that he did. Where coercion is claimed as a defence, there must have been ‘an immediate danger of death or great bodily harm and an inability to resist the violence’. For this defence to be successfully pleaded, it must be demonstrated that the accused’s will and resolution was in fact so completely overwhelmed by the threats and the danger, that he saw no alternative but to commit the crime. The objective test for coercion is similar to that for necessity. This was stated in Cochrane v HM Advocate to be ‘whether an ordinary sober person of reasonable firmness, sharing the characteristics of the accused, would have responded as he did’. Therefore, the defence of coercion will only succeed if it can be shown that in the circumstances the accused reacted in the same manner that a reasonable man would have reacted. Similar to the defence of necessity, there are as yet no decided case on applicability of coercion as a defence in murder cases. However, because the defence is a general defence, it could be raised in a murder case where the circumstances of the case meet the threshold discussed above.

Self Defence

Self defence is a complete as well as a special defence. It is a special defence in that it is a defence only to charges claiming illegal use of force such as murder or assult. The basic principle in support of self defence was laid down in the English case of Palmer v R. The principle holds that:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

Under Scots law, self defence can be pleaded where the offence charged was as a result of the accused’s effort to avert injury or harm to themselves, to their property or to a third party. There must have been imminent danger to life or limb as was stated in the case of HMA v Doherty. Further, the force used in averting the danger or harm must be only that which is necessary. It therefore must not be excessive. However, as observed by Lord Keith in the Doherty case, ‘some allowance must be made for the excitement or state of fear or heat of the moment for the man who is attacked.’ Whether the force used in retaliation is excessive will mostly depend on the facts of the case and the circumstances in which the offence happened. Where it is shown that the retaliation was more a response in provocation as opposed to self defence, then the defence of self defence will fail. In addition to the requirements stated, in pleading self defence, it must be demonstrated that the accused had no way of retreat. In murder cases, where self defence is successfully pleaded, then the accused is acquitted. However, if the defence fails then the accused will be liable for the full punishment for murder which in most cases is life imprisonment.

Provocation

The defence of provocation is a partial defence. This means that where an accused successfully pleads the defence of provocation, the accused will not be acquitted. Instead, the charge of murder will be reduced to culpable homicide. However, as Lord Justice Roger stated in Drury v HM Advocate, the defence of provocation should not be seen as ‘reducing’ murder to culpable homicide. Rather it should be taken as a mechanism to demonstrate that the accused lacked the mens rea for murder in the first place and could therefore only be found liable for culpable homicide. For a defence of provocation to succeed under Scots law, there must have been a loss of control that was brought about immediately by either an initial act of violence towards the accused by the now deceased person, or by discovery of sexual infidelity.This loss of control need not be complete. Further, where the accused was informed of the sexual infidelity by word of mouth, this would sufficiently constitute verbal provocation. Where the provocation is violence against the accused, retaliation must be ‘reasonably proportionate’. Where the provocation is sexual infidelity, the level of overreaction by the accused must be that of an ordinary person.

Automatism

Automatism is a special defence which seeks to negate the mens rea of the crime committed. In this defence, the accused person claims that his actions leading to the offence were involuntary. As opposed to the idea of a mental disorder causing involuntary conduct, automatism is attributed to external factors that caused an involuntary reaction or temporary loss of reason by the accused. The case of Ross v HMA laid down the requirements that must be proved for a defence of automatism to succeed. These include that one, the external factor claimed must not have been self induced. Two, it must not have been foreseeable to the accused. Lastly, it must have led to total loss of control by the accused in relation to the offence he is charged with. In the case of Ebsworth v HMA, the defence of automatism failed. The accused who was suffering from a broken leg, took an excessive dose of legal and illegal painkillers. He lost control and ended up committing several offences. The court held that although he had a legitimate reason to take the pain medication, the effects of such a large dose were foreseeable. As such, he could not rely on the defence of automatism. Therefore, where an accused is charged with murder but can show that at the time of the killing he was suffering from a temporary loss of reason or control due to an external factor that was not self induced or foreseeable, then he may successfully plead the defence of automatism.

CONCLUSION

The above form some of the possible defences to a criminal charge in a murder case that Alan can consider.

Bibliography

Chalmers J et al, Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press 2010)

Leverick F, Killing in Self- Defence (Oxford University Press, Incorporated 2007)

Hume B D, Commentaries on the Law of Scotland Respecting Crimes (The Law Society of Scotland 1844 vol I 4th edn 1986 reprint)