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General defences are available in relation to a range of offences rather than those which are available only in relation to a particular crime. Some offences have particular defences attached to them.These defences are specifically dealt with in the relevant Practice Note relating to the offence. This subtopic deals solely with the general defences.

General defences are those which arise from specific characteristics of the defendant or the circumstances of the offence which mean that the prosecution cannot prove all the elements of the offence. They may result in an acquittal or they may reduce the defendant’s culpability to render them guilty of a lesser offence.

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Self-defence and defence of others or property

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Self-defence and defence of others or property

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Self-defence is an absolute defence which can apply to offences committed by force. Self-defence as a defence can take the form of defence of a person or property, the prevention of crime and the lawful arrest and apprehension of offenders.

The defence will be available to a person if they honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as the person viewed them. In determining what force is reasonable, the physical characteristics of the defendant might be relevant.

When raised by the defence, it is for the prosecution to rebut a defence of self-defence to the criminal standard of proof. The factors which it may rely on include:
•use of excessive force
•the consequences of the action taken, particularly where the result was death or serious injury
•the use of a weapon in applying force,
•premeditated violence eg going armed to exact reveng

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Insanity is a complete defence even to strict liability offences. To establish a defence of insanity it must be clearly proved that, at the time of commission of the act in question, the accused was labouring under a such a defect of reason, from a disease of the mind as not to know the nature and the quality of the act they were doing, or, if they did know it, they did not know it was wrong. Where a person wishes to raise insanity as a defence the burden of proof (on the balance of probabilities) rests with the defendant.

In the Crown Court, a jury may return a 'special verdict' of 'not guilty by reason of insanity'. This is provided for in the section 2 of the Trial of Lunatics Act 1883. For a special verdict to be returned, the prosecution must prove that the accused did the act or made the omission charged. A special verdict is inapplicable to trial in magistrates' courts. Thus, a defence of insanity would lead to a completely acquittal in the magistrates’ court although the defendant may not necessarily be released but may instead be detained on mental health grounds.

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Duress by threats provides a complete defence to a charge of any offence other than murder, attempted murder or (potentially) treason. The defence arises where the defendant commits the offence with the relevant intention but is induced to act by a threat made by another person, or where the defendant reasonably believes such a threat has been made, to the effect that, unless the defendant commits the offence with which they are charged, they or a third person will be harmed. The evidence for a defence of duress must be raised by the defendant. The burden is then on the prosecution to disprove the assertion.

The court will consider the reasonableness of the defendant’s reaction in the context of the prevailing circumstances. It will consider whether the response was proportionate.

Necessity differs from duress in that it is not an excuse, but as a choice between two evils which provides justification for the offence. The defence of necessity is available only in very narrow circumstances.

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To raise the defence of mistake is to deny the mens rea of the particular crime charged. The defence of mistake requires the accused to have made a mistake about the circumstances or consequences of an act which nullifies a suggestion of criminal intention. A mistake about the law will generally be no defence, save where knowledge of the legal state was relevant to the requisite intent. Mistake of fact is more commonly relied on as a defence.

The test is whether the accused's belief was an honest and genuine one (subjective). It is not relevant whether the accused's mistaken belief was reasonable. This is different where the required state of mind is negligence, in which case, reasonableness will be a factor because an unreasonable mistake would be proof of the negligence which is the basis of liability.

Mistake provides no defence to strict liability offences. In cases where the criminal intention is subjective recklessness, then the mistake will also be considered subjectively.

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An act is done in a state of automatism if it is done by the body without control by the mind (eg it is a spasm or a reflex) or if it is done by a person who is not conscious of what they are doing. To claim a defence of automatism the defendant has to have a total loss of control over their actions, meaning they cannot be held liable for those actions because their conduct lacks the basic requirement of being voluntary.

There must be a total destruction of voluntary control on the defendant’s part. If the defendant retains impaired, reduced or partial control, the defence is not available.

The defence of automatism is limited in the following circumstances:
•where automatism is caused by a disease of the mind
•where automatism is caused by self-induced intoxication
•where automatism is caused by a self-induced incapacity, other than intoxication due to drink or drugs, (eg a failure to eat while taking insulin)
•where there is only a partial destruction of voluntary control on the defendant’s part

Where it is raised, there is an evidential burden on the prosecution to negate it to the criminal standard. It will be left to the jury only if it has a proper evidential foundation, which does not amount to evidence of insanity. The defence is a complete defence. Thus where a jury is not satisfied that the prosecution has disproved automatism beyond reasonable doubt, the defendant should be acquitted.

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Self-defences and defence of others or property

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Self-defences and defence of others or property

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Our right to self-defense stems from Section 96 of the Penal Code, which specifies that anything done in self-defense is not considered a crime, which is how we came to believe we might lawfully injure a robber. But we can't just term everything we do "self-defense" to get around the restriction.

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Nothing constitutes an offence done by a person who, at the time of committing it, is incapable of grasping the nature of the act, or that he is doing something that is either unlawful or against the law, because of insanity, according to section 84 of the Penal Code: 84.

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In non-Code offences, the defence of duress is possible. The phrase "offence" in Chapter IV of the Penal Code (the General Exceptions) means a thing punished by the Code or any other legislation now in effect, according to Section 40. a legal offence

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According to section 76 of the Penal Code, Nothing is an offence which is done by a person who is, or who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be, bound by law to do it.

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Automatism causes a person to act out in an involuntary and/or unconscious manner and is classified under Section 84’s insanity defence.

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Major disagreements in the contemporary discussion of general principles of law are over the "two-category" approach to this source and its connection to other sources. In order to disentangle these controversies, this paper argues that the need for international law to be a coherent legal system drives the formation and identification of general principles; as a result, general principles of both categories embody the "implied consent" of States in light of the requirements and conditions of international law. This article argues that the risk of general principles functioning as an easier way for States to create obligations is based on the characteristics of general principles resulting from this "implied assent," which separates them from treaties and custom.

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The Defence of Duress Under The Penal Code

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The Defence of Duress Under The Penal Code

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Mohamed Yusof Bin Haji Ahmad v. Public Prosecutor

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Mohamed Yusof Bin Haji Ahmad v. Public Prosecutor

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Section 94 of the code to succeed.

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- Appellant is guilty of trafficking 2700grammes of cannabis
- Deemed to be in possession and knowledge of the said drugs
-He admitted that he carried 2 bags containing cannabis to Padang besar.
- He did it under threat from a male, who is Thai national in a hotel in Sadau, Thailand

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- S94: there must be reasonable fear at the very lime, of instant death
-Person who do criminal act from fear of anything other than instant death, do them at their perii, not protected by section 94
-it an offence is completed when all danger of instant death has been removed, the person committing the offence is not protected under section 94
-if the accused on his own accord places himself in a situation by which he becomes a subject to the threats, even if it is a death threat section 94 does not apply
-Appellant had complied with the request to carry the 2 bags to the railway and reached the station, placed the bags on the platform and gone to purchase ticket to leave Padang Besar. He had been carrying the drug for 1 and half hour without making any attempt to seek for help.
-Although the Thai was 20 feet away on the platform when he last saw him, there are people at the public place, and there are officers from whom he can seek for help (there is no reasonable apprehension of death)
-The duress was no longer instant imminent, extreme and persistent.
-The moment he placed the bag and purchase ticket, mission completed under no such duress present or continue.

Conviction confirmed.