Criminal Law, Problem Question - Defences

(a) Al, a terrorist captures Bill. Al says “unless you kill Tony I will kill your family”. Bill kills Tony.
(b) George, a depressed terrorist, captures Margaret. George says “unless you kill me I will kill your family.” Margaret kills George.
(c) Cedric, a particularly fat pot-holer, gets stuck in the entrance to a pot hole. Three other pot-holers are stuck inside. After four days, without food, and all attempts to move Cedric having failed, one of the three (Dave) blows Cedric up with dynamite, enabling all three to escape.
What would be the law’s response to these situations? What should the law’s response be?

(a) Bill will be charged with murder. As Bill has committed the act of causing Tony’s death, the actus reus of the cirme will be established. The mental element of the offence is also straightforward as Bill very obviously had the intention of killing Tony.
Bill could try and rely on the defence of private defence. The defence would operate if the defendant (Bill) thought he was facing an unjust threat from the victim and to avoid such a threat used a reasonable level of force in circumstances. Section 3 of the Criminal Law Act 1967 states that ‘a person may use such force as is reasonable in the circumstances in the prevention of a crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’. Thus Bill could contend that he killed Tony to prevent Al from killing him and the force used by him in these circumstances was reasonable as it was his only option.
However, as Tony, the victim, did not personally pose a threat to Bill, the defence of private defence cannot apply in this situation. In R v Hitchens1 Lord Justice Gross held that self defence, both at common law and under section 3, was not capable of extending to the use of force against an innocent third party, to prevent a crime from being committed by someone else. We can draw an analogy between the given situation and the case of Hitchens, where the defendant assaulted a woman to prevent her from allowing a man into her flat, as he believed the man would assault him. Bill, in accordance with the precedent set, cannot be allowed to use force against Tony to prevent Al from killing him.

Bill could rely on the defence of duress, which requires that the defendant committed the crime because of threats of death or grievous bodily harm and that a reasonable person would have acted in the same way as the defendant did. However, in R v Howe2 it was established that duress was not a defence to murder. In R v Howe, the defendants brutally assaulted two young men, causing their death and were thereby convicted of murder. They appealed on the basis that they had only committed the crime because they had been threatened that on their failure to do so, they would suffer violence, which they took to mean death. Lord Hailsham delivered the judgement wherein he stated that while it was not expected of a reasonable person to sacrifice his own life if threatened of such a consequence unless they killed another person, a concession of human frailty could not be the basis for criminal law withdrawing protection from innocent victims. Further, he stated that a reasonable person would reflect that one innocent human life is at least as valuable as his own and that therefore, the defendant would not be choosing ‘lesser of the two evils’.

Lastly, Bill may try and rely on the defence of necessity – the defendant was placed in a situation of emergency and acted in a manner necessary to avoid harm. In Re A3, Brooke LJ laid down three requirements for the defence of necessity-
(i) The act needed to avoid inevitable and irreparable damage
(ii) No more should be done than is reasonably necessary for the purpose
(iii) The evil inflicted should not be disproportionate to the evil avoided.
Bill could assert that his act met the requirements as Al killing Bill on the failure of Bill killing Tony was inevitable and irreparable damage, Bill killing Tony was no more and no less than what Bill needed to do to avoid death and the death of Tony was proportionate to the avoidance of his own death.
However, the case of Dudley and Stephens4 had not considered such an approach as lawful. There the defendants were among the three men and a cabin boy shipwrecked on a boat without food and water. After many days, they killed the cabin boy who was already sick, and ate him to survive till they were rescued. The Court of Appeal held that killing to boy to avoid the death of all four was not ‘lesser of the two evils’ – it divorced law from morality and also left the assessment of value of life to the executioners. The defence of necessity failed and the defendants were convicted of murder.
The law on necessity is not governed by legislation through Parliament and is thus developed only through precedents in a common law system. Bill’s defence of necessity will succeed dependent on whether the court follows the precedent of Re A or Dudley and Stephens. The probability is that the objection to the defence of necessity, of allowing the defendant to assess the comparative value of lives, will not be solved (whereas in Re A the judges took a decision in give their consent to any such action where the victim(s) were incapable of giving their consent).

Thus, Bill will not be able to raise the defence of self-defence, necessity or duress and will be convicted of murder.

(b) Margaret will be charged with murder. The actus reus and mens rea will be easily established – she caused George’s death and had the intention of killing George.
Margaret could rely on private defence to exonerate her. The requirements for the defence to apply – an unjust threat from the victim and use of reasonable level of force to avoid such a threat - will be met in this case. George, the ‘victim’, unlawfully threatened to kill Margaret unless she killed him. As such, the force exerted by Margaret was proportional in the sense that it was her only option to achieve the purpose of avoiding her own death. Other requirements of the defence - the defendants acting in order to protect themselves, another or property, reasonable use of force, necessary use of force - are also met. Margaret was acting in order to protect herself and her actions were directly caused by the threat. The objective use of ‘reasonable’ force as a response to the threat as perceived by Margaret would be considered to be the response expected from an ordinary person of reasonable fortitude and the situation clearly necessitated the use of force (she was captured and could not escape from the threat peacefully). Thus, relying on self defence, Margaret will not be held liable for the murder of George.

(c) Dave will be charged with the murder of Cedric. Dave’s act of blowing up Cedric with dynamite caused the death and Dave could have foreseen the virtual certainty of grievous injury or death of Cedric. Thus, the actus reus and mens rea for murder will be established.
Dave could try and rely on private defence for exoneration. Cedric was posing a threat to the lives of men stuck inside the pot-hole as they did not have access to food or water due to Cedric blocking the exit from the pot hole and could have died or suffered serious physical harm. It is clear that the defendant genuinely held such a belief. The defendants had unsuccessfully tried all other means of moving Cedric without harm and thereby getting them out of the situation. The force exerted by the defendant was therefore necessary. Reasonableness of the force used would be debatable. Dave could claim that he acted after having tried all other means to extract Cedric from the pot-hole and therefore any reasonable person facing the threat as perceived by the defendant would have reacted in a similar manner. In Bird5 it was held that if the defendant unsuccessfully tried to escape from the situation, then the jury was particularly likely to find that the defendant had acted reasonably. The requirement for the defendant to be acting in order to defend himself or another will also clearly be met as Dave acted so as to save his own life and the life of the other men stuck in the pot-hole.
However, self-defence also requires the threat posed by the victim to be unjust. While unjust does not necessarily have to refer to the commission of an offence (Cedric was not committing a crime), the threat must be unjust. Cedric had only gotten stuck in the pot-hole and this could not be construed to be unreasonable or unjustified.
The threat would better be perceived as one of circumstance – and as Dave will not be able to rely on self defence, he could raise the issue of duress by circumstance.

The act of having killed Cedric could meet all requirements of duress – the defendant acted due to the threat, which was of death or grievous bodily harm (physical injury) to him as well as three others. He could also contend that a reasonable person would have acted as he did in those circumstances. However, duress does not constitute a defence to murder and therefore Dave will not be able to rely on it.

Dave could consider relying on the defence of necessity. While duress of circumstance is not available as a defence to murder, necessity (which overlaps with it to a great extent) can be relied on. Dave could contend that given the situation he was in, where all action and inaction would lead to harm being caused, he chose the ‘lesser of the two evils’. However, the courts have seldom recognized the defence of necessity. Of the cases where it has been recognized, as per the requirements stipulated for the defence to be available (in Re A6), Dave would be able to rely on necessity to acquit him of the charge. The act of blowing up Cedric was needed to avoid inevitable and irreparable damage, the pot-holers stuck inside would have either died or suffered serious physical harm. Dave only did what was reasonably necessary to achieve the purpose of avoiding harm and the evil inflicted (Cedric’s death) was certainly not disproportionate to the evil avoided – the death of three other pot-holers as well. A similar case, Dudley and Stephens7 was decided differently and held to be a correct judgement by the Court of Appeal. The objections to allowing the defence of necessity in Dudley and Stephens according to Lord Brooke in Re A were that there could be no measure to ascertain the comparative value of human lives or a guideline as to who could judge and make such a value assessment and that permitting such a defence would divorce law from morality. These questions have by no means been answered and Lord Robert Walker stated that in the absence of Parliamentary intervention, the law on necessity as a defence would develop on a case-by-case basis.
Thus, whether Dave would be convicted would be a matter for the judges to decide, dependent on the line of reasoning they wish to take on the defence of necessity. Again, as in the case of Bill, the comparative value assessment of the lives that are threatened is left to the defendant. However, one could reasonably assume that the value of three lives could be considered greater than one and further, unlike in the Dudley and Stephens case, the defendant does not have to choose a person to kill – he only killed the person who presented a threat to their lives.

Thus, all three scenarios have a person commit murder in a situation where if they did not do so, they would have had to sacrifice their own life. Yet the law does not give immunity or allow for a defence for all three individuals.
In the first scenario, Bill kills Tony because Al threatens him. In the second situation, Margaret kills George because he threatened to kill her. Dave kills Cedric because Cedric posed (a passive) threat to the lives of those stuck inside the pot hole. While, one can describe the overarching theme in all three cases, it is difficult to categorise them into any category for the basis of providing a defence.
Bill kills Tony to ward off or prevent the threat from Al, but he does so by complying to the demands of Al. The first is an element of self defence (warding off threat) whereas complying is a characteristic of duress. Yet, Bill cannot satisfy the conditions of either defence. (One can say that the victim was an innocent bystander and therefore this is better seen as a case of duress or necessity)
Similarly, Margaret kills George to block a threat but again does so by complying to his demands. In terms of the nature of the act, this could fall into category of either duress or self defence. Here the person issuing threats is himself the victim – could fall into self defence or duress. (As it is a case of murder, the only choice is to raise self defence).
The case of Dave killing Cedric is most complicated. As there were no individual issuing threats in this case, it cannot be a case of duress of threat. However, the case has elements of self defence, duress of circumstance and necessity. The status of the victim cannot be seen as analogous to an aggressor, Cedric could be seen to be more of a passive threat. However, it would be difficult to ascertain whether the threat posed by Cedric was unjust. However, the threat posed by Cedric only arose out of circumstance – not a deliberate threat. He would still be considered innocent. Then, the basis of differentiating between self defence and necessity here is eroded. While Cedric does pose a direct threat to Dave, he is an innocent bystander.
All three cases fall in the borderlines between self defence, duress and necessity and the question of whether the conduct of the defendant was acceptable and therefore justified (due to the operation of self defence) or unacceptable but not blameworthy (excused due to the operation of duress or necessity) remains unclear.
How law should demarcate and respond to such scenarios is a matter of debate and depends on what one considers ought to be blameworthy. The choice, character and capacity theories differ with choice theory finding blameworthiness if the defendant chose to act in defiance of the law, the capacity theory finding fault if the defendant had the choice and capacity to act in accordance with the law but did not whereas the character theory only finds fault where the conduct of the defendant reveals criminal or bad character.
In cases like the ones discussed however, all three theories converge – the defendants did not have any meaningful choice and their conduct did not reveal criminal character. Yet, while Margaret will probably be able to rely on private defence, Bill and Dave may or may not succeed on pleas of necessity.
Peter Glazebrook has argued that it is illogical to support the doctrine of ‘lesser of the two evils’ in duress or self defence but not other circumstances and inconsistent to not allow duress to be extended to cases of murder. In R v Howe, the counter argument made was that policy considerations required the limitation of the defence of duress. Further in most cases of duress and necessity, an innocent bystander is harmed and it was held that the law needed to protect innocent civilians over those choosing to act in defiance of the law out of pressure exerted on them.

Clarkson has advocated for a unified defence, encompassing self defence, duress and necessity. His argument is based on the fact that the similarities between the three defences outweighs the differences – defendants in all three are committing a prima facie wrong in order to avoid harm, protecting themselves or other persons.
Fiona Leverick however counters this argument by stating that the conceptual differences between the three defences are important, they cannot and should not be undermined. Public policy issues relating to the defences are different, with duress requiring more limitation that necessity or self defence. Stricter conditions (objective tests) are therefore imposed for the defence of duress to succeed than in self defence (subjective conditions). Lastly she makes the point that the distinction of the defences allows fair labeling of conduct, pointing out that the distinction is only contentious when there is a need to raise a defence against murder.

Lord Bingham in R v Z8 referred to the law commission’s recommendation for allowing duress to be available for all offences. However, this is has not been incorporated as yet due to the hesitancy of permitting defences in the gravest crimes.

The defences raise political and moral questions – the extent to which a defendant should be blamed, whether the defendant acted in an appropriate manner while committing what would otherwise have been a crime, whether the defendant’s act can be classified as ‘lesser of two evils’ and so on.

Underlying all discussion and debate on how the law should respond to these situations is the need for balancing the conflicting objectives of approving or excusing conduct that is not blameworthy and restricting defences so as not to provide a ready escape for criminals against a charge.

In the situations discussed above, it could be suggested that while Dave and Margaret ought to be allowed to rely on a defence, Bill should not. This is because Margaret only harmed an individual who was posing a direct threat to her (even while she did so by complying to his demands –a case of duress that would not be available). As the circumstances can fall into the sphere of self defence, and her behaviour may not be considered blameworthy, the defence could be allowed.
Dave may be allowed to rely on the defence of necessity as due to the circumstances as they arose, Cedric posed a threat to the lives of three pot-holers. While it would be immoral and unjust to allow Bill to assess the comparative value of his life with that of Tony, Dave saved three lives, thereby avoiding harm worse than the harm inflicted. In addition to this, while Cedric did pose a passive (but innocent and maybe not unjust) threat to Dave, Tony was not a threat to Bill.
The law, delicately strives to balance justness with the policy considerations to protect innocent individuals. Southwarks LBC v Williams9 is a good example where the courts held that homelessness (necessity) could not be a defence to trespass – leaving political considerations of equality with political institutions (as also argued by Horder). Thus, the limits on duress and a mere implied or rare recognition of necessity can be argued to be justified.