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GENERAL DEFENCES
Defences are factors that exclude an accused from criminal liability, even when he or she has committed an offence. In these lectures, we will consider general defences: defences that apply in relation to all (or almost all) offences. Amongst the most significant of these are self-defence, necessity, coercion, automatism and mental disorder. (Some other defences apply only in relation to specific offences or groups of offences. See e.g. the earlier discussion of provocation and diminished responsibility as partial defences to murder.) Reading: Gane, Stoddart and Chalmers (4th^ edn), ch 7 OR Jones and Christie (5th^ edn), ch 8
1. How Defences Work The word ‘defence’ is sometimes used colloquially to refer to any kind of answer that an accused might offer to a criminal charge. For example, it might be used to refer to an alibi offered by the accused, or a denial of mens rea (e.g. that the accused committed the actus reus accidentally or by mistake). Such claims are sometimes called ‘failure of proof’ or ‘absent element’ defences. Here, however, we are concerned with defences in a stricter, legal sense. These are claims that can exclude criminal liability even when an accused admits to committing an offence. A. Defences and proof The prosecution must prove, beyond a reasonable doubt, that the accused has committed the offence charged. By contrast, the accused bears the initial burden of raising any defence. However, the accused’s burden is only evidential: that is, of pointing to some evidence in support of the defence which would entitle the jury to give him or her the benefit of the doubt. Once this burden is discharged, the burden shifts back to the prosecution. The exceptions to this general rule are insanity and the partial defence of diminished responsibility (see the earlier lectures on homicide), which the accused must prove on the balance of probabilities. B. Types of defence Although the distinction is no longer made in the law itself, it is common (and helpful) to distinguish two kinds of defence: Justifications: claims that although the accused committed an offence, doing so was not wrongful in the circumstances. Excuses: claims that although the accused committed an offence, and doing so might have been wrongful, the accused nevertheless should not be blamed for his or her actions. 1
Some commentators also distinguish a third category of defences, variously called ‘exemptions’ or ‘denials of responsibility’. Such defences are claims that the accused is not the sort of person who ought to be held criminally responsible. Defences involving mental disorder are the most commonly placed in this category.
2. Self-Defence This well-understood defence permits the use of force against aggressors in order to avert the threats that they pose. Although it is commonly known as ‘self-defence’, it also applies to actions in defence of third parties (see e.g. HM Adv v Carson 1964 SLT 21). For this reason, some people instead choose to refer to it as ‘private defence’. The requirements for the defence are set out in *HM Adv v Doherty 1954 JC 1, per Lord Keith: "First of all, there must be imminent danger to the life or limb of the accused, to the person putting forward this defence; there must be imminent danger to his life and limb; and, secondly, the retaliation that he uses in the face of this danger must be necessary for his own safety... You do not need an exact proportion of injury and retaliation; it is not a matter that you weigh in too fine scales, as has been said. Some allowance must be made for the excitement or the state of fear or the heat of blood at the moment of the man who is attacked, but there are limits or tests that are perfectly well recognised and which will help you to understand this doctrine by way of illustration. For instance, if a man was struck a blow by another man with the fist, that could not justify retaliation by the use of a knife, because there is no real proportion at all between a blow with a fist and retaliation by a knife, and, therefore, you have got to consider this question of proportion between the attack made and the retaliation offered. Again, if the person assaulted has means of escape or retreat, he is bound to use them." It will be seen from this that there are three requirements: A. Imminent danger The accused must have used force in order to prevent a harm threatened by the victim. Additionally, the defence applies only where the threatened harm was imminent: threats of future harm will not suffice. B. Absence of opportunity to escape or retreat The accused must have had no reasonable opportunity to escape or retreat from the threat. See e.g. McBrearty v HM Adv 1999 SLT 1333, 1337 per Lord Coulsfield: 2
(i) Imminent threat of death or serious injury against the accused or a third party The direction in Thomson restricts coercion to cases involving threats of death or serious injury. As with self-defence, the defence applies only to threats of imminent and not future harm. (ii) Threat must have “dominated the mind” of the accused The accused’s will must have been “overborne” by the threats: which is to say, the threats must have been what actually caused the accused to commit the offence. (iii) Objective test The threat must be “of such a nature as to overcome the resolution of an ordinarily constituted person of the same age and sex as the accused”: Anderson, Criminal Law of Scotland , p 16; approved in Thomson (above). See also Cochrane v HM Adv 2001 SCCR 655. (iv) No voluntary exposure to the risk of coercion The defence will not be available where the accused voluntary exposed him- or herself to the risk of coercion. A significant function of this criterion is to exclude the defence where the accused’s exposure to coercion resulted from membership in a criminal organisation or gang. *Thomson v HM Adv (above) at 73 Cf. R v Hasan [2005] 2 AC 467 B. Necessity As in many other jurisdictions, Scots law was historically reluctant to recognise a defence of necessity. The defence was not formally recognised by the High Court until the decision in *Moss v Howdle 1997 JC 123. Moss , along with the more recent case of *Lord Advocate's Reference (No 1 of 2000) 2001 JC 143, lays down several criteria that must be satisfied: (i) Imminent threat of death or serious injury against the accused or a third party Again, the defence applies only to imminent threats. Mistakes about threats are judged by a standard of reasonable belief: Lord Advocate's Reference (above). (ii) Threat must have constrained the accused to break the law As its name suggests, the necessity defence requires that the accused’s actions were actually necessary in order to avert the relevant threat. See Moss v Howdle (above). 4
(iii) Threat must have “dominated the mind” of the accused As with coercion, the accused’s commission of the offence must have been caused by the relevant threat. See e.g. *Dawson v Dickson 1999 JC 315. (iv) Objective test 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”: Lord Advocate’s Reference (above) at [42]. (v) The act must have had a reasonable prospect of removing the danger This requirement was added by the Lord Advocate’s Reference case (above). C. Coercion and necessity in murder cases It is doubtful whether coercion and necessity act as defences to murder. The traditional position in the common law is that they do not: R v Dudley & Stephens (1884) 14 QBD 273 Cf. Re A (Conjoined Twins) [2001] 2 WLR 480 The rationale for the exclusion seems to be that people ought not to be allowed to choose amongst innocent lives. See e.g. Collins v HM Adv 1991 SCCR 898 at 902: “It is repugnant that the law should recognise in any individual in any circumstances however extreme the right to choose that one innocent person should be killed rather than any other person including himself.”
4. Automatism This defence applies to actors who, as a result of some external cause, were not conscious of their criminal actions. Previously, it was thought not to exist in Scots law ( HM Adv v Cunningham 1963 JC 80). The defence was recognised, however, in the leading case of * Ross v HM Adv 1991 JC 210. Ross sets out the following requirements for the defence: A. Alienation of reason The principal requirement of the automatism defence is for a “total alienation of reason amounting to a complete absence of self-control”. This requirement was explained in the subsequent case of Cardle v Mulrainey 1992 SLT 1152: 5
The criminal law relating to mental disorder was comprehensively reformed by the Criminal Justice and Licensing (Scotland) Act 2010. The 2010 Act abolished the old common law of insanity and replaced it with new statutory provisions, inserted into the Criminal Procedure (Scotland) Act
- These reforms followed the recommendations of the Scottish Law Commission in its Report on Insanity and Diminished Responsibility (Scot Law Com no 195, 2004). A. The mental disorder defence (i) Requirements S 51A(1) of the 1995 Act (inserted by s 168 of the 2010 Act) provides that: A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. As can be seen, the test for the new defence is whether the accused was unable (by reason of a mental disorder) to appreciate the conduct constituting the offence at the time it was carried out. The concept of appreciation is intended to be wider than that of mere knowledge; the accused might know what he or she physically did but still fail to appreciate the nature of the conduct. Similarly, the defence might apply when an accused knew his or her conduct breached a legal or moral norm but had reasons for believing that it was the right thing to do. S 51A(2) provides that: [A] person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct. The effect of this subsection is that the defence will not apply in cases involving psychopathic personality disorder only. Other forms of personality disorder might give rise to the defence (if they satisfy subsection 1), and a psychopathic personality disorder might give rise to the defence if it co-existed with another mental disorder that satisfies subsection 1. (ii) Procedural aspects In contrast to the earlier common law position, only the accused is able to raise this defence. As mentioned above, this defence is for the accused to prove on the balance of probabilities: s 51A(4). 7
Unlike with other defences, courts retain powers to order certain disposals of the accused where he / she is acquitted on grounds of mental disorder. For example, the court may order detention of the accused in hospital. See s 57 of the 1995 Act. B. Unfitness for trial At common law, insanity could also function as a plea in bar of trial. S 53F of the 1995 Act (inserted by s 170 of the 2010 Act) replaces the common law plea with a new plea of ‘unfitness for trial’. The relevant test is that the accused must be “incapable, by reason of a mental or physical condition, of participating effectively in a trial”. The statute sets out criteria to be taken into account in making this assessment. The Crown, the court and the accused all remain able to raise the issue of the accused’s fitness for trial.
6. Intoxication Involuntary intoxication can sometimes constitute a defence, as the foundation of a plea of automatism. It is a longstanding rule in Scots law, however, that voluntary intoxication is no defence: “Nothing is better established in our law than that intoxication, so far from being an alleviation, is an aggravation of a criminal charge; and indeed such is the tendency to this brutalizing vice, among the lower orders in this country, that if it were sustained as a defence, three-fourths of the whole crimes in the country would go unpunished; for the slightest experience must be sufficient to convince every one, that almost every crime that is committed, is directly or indirectly connected with whisky. For these reasons, our law utterly disowns any such defence…” (Alison, Principles 661) Modern authority suggests, moreover, that evidence of voluntary intoxication cannot even be used to deny that the accused had the required mens rea for an offence. One reason given is that intoxication is reckless in itself. See e.g.: *Brennan v HM Adv 1977 JC 78 Ross v HM Adv 1991 JC 210 8
