Defence Against Murder

Subject: Law
Type: Analytical Essay
Pages: 7
Word count: 1893
Topics: Criminal Justice, Crime

Why self-defense is a complete defense to murder

Self-defense is a complete defense to murder mainly because there is provisions for the defense of an individual in common law. In cases whereby violence has been used, the Queens’ Peace and the Rule of Law are preserved as guiding principles. However, responsible action by people in order to prevent crime, personal defense, property and family defense is fairly prosecuted in the case that offenders are apprehended. Prosecutors dealing with cases in which assertions of crime prevention, property preservation and self-defense, they are urged to maintain equilibrium between discouragements of vigilantism and the general use of violence and promotion of responsible contribution by citizens through public interest.

Often, a degree of sensitivity is maintained in cases where an alleged victim of a crime is herself/himself a perpetrator of criminal activity in the time in question. For instance, a case in which a burglar claims assault against the owner of the building they were stealing from. The Code of Crown Prosecutors sets out tests which are instrumental when making considerations on arguments of self-defense in cases. The document, issued by the Director of Public Prosecutions is public. The evidence presented in court is tested for reliability and credibility for use in a court of law. Prosecutors endeavors to ensure that against every defendant there is “realistic prospect of conviction”. The other test sets out to ensure that Crown Prosecutors Service has enough public interest to take the case to court. 

In the case Cross v Kirby, 5th April 2000, Mr. Cross sued Mr. Kirby for fracturing his skull with a baseball bat that he had initially attacked Mr. Kirby with for attempting to disrupt a hunting session and forcibly leading his partner away. Due to the sustainment of a fractured skull inflicted by Mr. Kirby after tussling for the baseball bat and gaining control, Mr. Cross was awarded damages. An appeal by Mr. Kirby arguing self-defense and no-reliance on unlawful conduct on Mr. Cross side was later allowed by The Court of Appeal. The court permitted the appeal on the basis that the defendant’s plea of self-defense was not displaced by medical evidence suggesting that the intensity of the blow sustained was above average. Alternatively, through the principle “Ex turpi causa non oritur actio” translating to mean “from a dishonorable cause and action does not arise”, he was barred winning a claim arising from his own illegal conduct and if ruled in the claimant’s favor, the court would appear to tolerate his action. 

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In the case R v Gladstone Williams 1984, the appellant clobbered a man after he had witnessed him attack a youth whereas in real sense the youth was a mugger and the attacker had apprehended and stopped him from escaping. He was convicted and appealed contending that the jury was misdirected by the trial judge who ruled that his mistake was reasonably held.  The appeal was allowed on the basis that the defendants belief either unreasonable or not was relevant. The prosecution was given the burden of proving the lawlessness of the defendant. The Jury concluded that the defendant was justified to rely on self-defense and prevention of crime even though he had made an unreasonable mistake by benefit of taking action purposed by it.

Murder charges arising from excessive force under the guise of self-defense have influenced a call for changes. The jury is being urged to return verdicts on manslaughter instead of having to rule non-liability or murder. Such a ruling is evident the case R v Clegg, where soldier in Northern Ireland fired a fatal shot that killed a passenger in a stolen vehicle that refused to stop at a checkpoint. Indeed, the passengers were joy riders and not thieves. The defendant was convicted of manslaughter because he fired the last shot even after the danger had passed and thus had used excessive force. He appealed the conviction stating that he was out on patrol assisting law and order and not illegally killing anyone. The appeal from the House of Lords was dismissed on the basis that the soldier used excessive force by shooting with the intention of seriously wounding or killing while firing in self-defense.   

Loss of control as partial defense

Defense of loss of control is a partial defense that significantly reduces liability associated with murders to manslaughter.  However, it does not work to completely in favour of the defendant by the complete absolution from liability nor does it exist as a general defense but only for murder offenses.  This defense arose from discrepancies in the defense of provocation eliciting inconsistency in its application and interpretation as set out in the Homicide Act of 1957. This defense was also critiqued for gender bias in that male defendants who killed their partners through losing temper were favored but women who killed out of fear of immense violence were not catered for. 

In a case involving Sarah Thornton who killed her partner in self-defense for abusing her, the court convicted the defendant for murder and rejected her appeal against public interest. According to the Coroners and Justice Act 2009, an individual who murders or was involved in a murder may be sentenced for manslaughter instead of murder where there exists, (a) a loss of self-control, (b) the loss of self-control had a qualifying cause, (c) an individual of D’s sex and age /with an normal level of lenience and self-discipline and in the conditions of D, might have reacted in the similar way to D.  According to Aileen McColgan’s In Defense of Battered Women Who Kill, a woman is found to be prevalent to violence from their partners than strangers. The paper argues that domestic violence continues to be overlooked and more attention should be focused on plights by battered women who kill their abusers and difficulties faced by women escaping battery. A qualifying trigger that specifically relates to the defendants loss of self-control was attributed to their fear of serious violence from the claimant or another identified person or whereby the defendants loss of self-control was attributed to things done or said constituting  circumstances of a weighted character or the defendant being justifiably seriously wronged.

Circumstances tantamount to extremely grave character are decided objectively. For instance in R v Hatter (2013), a case where the defendant, Mr. Hatter claimed accident after stabbing Miss Dawn Blackhouse after a phased relationship when he climbed into her house at midnight with a knife to lift carpets. He claimed to have accidentally stabbed her whilst holding a knife when he span around. The judge ruled that the circumstance was not of a grave nature nor was the aggrieved party seriously wronged.  An appeal by the defendant was dismissed and he was convicted of murder. Limitations exist to the qualifying triggers (a) Disregard that a thing said or done constituted sexual infidelity and (b) Persons are restricted from raising qualify triggers if they initiated the violence or thing said or done.

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In the R v Clinton 2012 case, the appellant and better half were on medication for depression due to work stress and financial constraints. After agreeing for a four-week separation, the wife revealed having an affair amidst suicidal tendencies by the appellant from the separation. The appellant invited the wife to a meeting at their home to clear the air on their issue. Upon arrival, the appellant killed her and sent pictures to her lover. The appellant attributed his actions to his deceased wife having told him of sexual relations with five other men, taunts about a suicidal website and not wanting any of their children. Defense of loss of control was declared unavailable for the defendant because words associated with infidelity were overlooked as qualifying triggers. His murder conviction was absolved and a retrial was ordered on the basis that the existence of sexual infidelity could be relied upon as a qualifying triggered amidst the defense reliance on other factors.

Why duress is no defense

The criminal defense of duress is a defense utilized by defendants who are obliged to commit a crime under threat the threat or actual use of violence. The defendant is dispossessed free will in decision making and hence cannot be legally held. The defense contains four elements  namely (a) Threat of death or serious bodily harm, (b) Immediate or imminent threat, (c) Creation of reasonable fear to defendant by threat and (c) No reasonable means for escape other than committing crime.

Despite this defense being applicable in an array of criminal cases, it is mostly declined in homicides because the criminal act involves the killing of another person. Two variations of the defense exist, (a) duress by threats and (b) duress of circumstances. In some cases despite the dependant have mens rea (intoxication, insanity or mistake) and the defense of duress holds stating that the defendant acted mainly out of compulsion. It differs from the defense of self-defense and prevention of crime as it concedes human frailty and a justification for crime (Zyberi, pg.97, 2017). Hence, there are limitations to the application of the defense of duress. (a)Murder, attempted murder and participation in killing, (b) treason, (c) debt to drug dealers, (c) voluntary joining of a terrorist group/criminal organization, (d) possibility of reasonable evasive action.

For instance, in the Abbott v The Queen 1977 AC 755 case where the Abbott took part in a killing which was preceded by death threats against his mother and himself. He had helped in holding down the victim during the cutlass attack. By extension he also participated in burying her alive. The Abbott was convicted of murder and the appeal to his conviction of a death sentence was dismissed citing that the defense is not applicable to first degree murder principles.

In another case, R v Flatt 1996 case, the Court of Appeal upheld the conviction of a drug addict that indebted to the supplier who had threatened to shoot his mother, grandmother and girlfriend if he did not look after some drugs. Convicted of possession with intent to supply, the appellant contended that an assessment of a drug addict warranted the actions that he took. The conviction was upheld on the basis that drug addiction was an induced condition and rather not a trait.

According to author Simester’s publication Intoxication is never a Defense, where a person is intoxicated by drinks or drugs and does a crime, the defendant’s level of intoxication may inhibit him/her from formation of the essential mens rea of the crime. The law marks clear dissimilarity between voluntary intoxication and involuntary intoxication. In the case of voluntary intoxication, whereby the defendant intoxicates themselves to a level where they cannot for the mens rea for the crime is seen as an aggravating factor and not a mitigating factor. In the DPP v Majewski 1977 case where the appellant had taken a lot of drugs within forty eight hours and had got involved in a fight in a pub afterwards with two other people. The appellant attacked the landlord who had gone to break the fight and also injured the arresting officer. He assaulted another officer on transit to the police station and attacked the police inspector during interrogation the following morning. He claimed that he could not remember the events due to intoxication and hence had no mens rea for the crimes. His appeal was dismissed as the crime was of basic intent and his state of intoxication no defense.

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In an appeal case involving insanity, R v Bowen 1997, the appellant obtained electrical goods on forty occasions by deception. Suggestible, the appellant appeared abnormal as he claimed he threatened to petrol bomb his family and himself. His appeal was dismissed on the grounds that the characteristics of an abnormal could not be taken to court and taken into account. 

However, there are characteristics that can be taken to account in defense of duress such as recognized mental illness, pregnancy, age, physical disability and sex.

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  1. Majewski’s Case, 1977 A.C. 443 (1977).
  2. R v. Dawes, Hatter and Bowyer, 2013 E.W.C.A. Crim 322 (2013).
  3. R v. Gladstone Williams, 1984 Cr. App. R.78 276 (1984).
  4. Braun, K., 2016. “Till Death Us Do Part” Homicide Defenses for Women in Abusive Relationships—Similar Problems—Different Responses in Germany and Australia. Violence against women, p.107.
  5. Haeri, M., 2016. Analysis of Jurisprudence-Legal of Compulsion and Duress in Adultery. J. Pol. & L., 9, p.89.
  6. Hosein, A., 2017. Responsibility and Self-Defense: Can We Have It All?. Res Publica, 23(3), pp.367-385.
  7. McMahan, J., 2016. The Limits of Self-Defense. Christian Coons and Michael weber (eds.), The Ethics of Self-Defense, pp.185-211.
  8. McColgan, ‘In Defence of Battered Women Who Kill’ (1993) 13 OJLS 508;
  9. Pascoe, D., 2016. The Voluntary Exposure Restriction to the Defence of Duress in Australia: A Critical Analysis.
  10. Reed, A., 2016. Loss of control and diminished responsibility: domestic, comparative and international perspectives. Routledge.
  11. Simester, ‘Intoxication is Never a Defence’ [2009] Crim LR 3;
  12. Williams, ‘Voluntary Intoxication—A Lost Cause?’ (2013) 129 LQR 264;
  13. Wilson, ‘The Structure of Criminal Defences’ [2005] Crim LR 108;
  14. Zyberi, G. and Rohan, C. eds., 2017. Defense Perspectives on International Criminal Justice. Cambridge University Press.
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