(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...
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