The Limits of Self-Defence, Necessity and Duress
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Durham E-Theses Criminal responsibility for intrusions on the rights of innocent persons: the limits of self-defence, necessity and duress Lodge, Anne How to cite: Lodge, Anne (2009) Criminal responsibility for intrusions on the rights of innocent persons: the limits of self-defence, necessity and duress, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/2102/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Criminal responsibility for intrusions on the rights of innocent persons: The limits of self-defence, necessity and duress The copyright of this thesis rests with the author or the university to which it was submitted. No quotation from it, or information derived &om it may be published without the prior written consent of the author or university, and any information derived from it should be acknowledged. A thesis presented for the degree of PhD at the University of Durham Anne Lodge LL.B (University of Teesside) 2009 1 5 MAY 2 Declaration I confirm that the thesis conforms to the prescribed word length for the degree for which I am submitting it for examination. I confirm that no part of the material offered has previously been submitted by me for a degree in this or in any other University. If material has been generated through joint work, my independent contribution has been clearly indicated. In all other cases material from the work of others has been acknowledged and quotations and paraphrases suitably indicated. Acknowledgements I would like to express my immense gratitude to a number of people who have played a significant role in the production of this thesis. I would like to say a big thank you to Professor Clare McGlynn, my supervisor, who has provided invaluable academic and practical support and guidance, often above and beyond the call of duty. Her comments and ideas have had a significant influence on this work and I am extremely grateful for the valuable time she has given me. Thanks are also due to Professor Bob Sullivan, my supervisor in the initial stages of the thesis, with whom I had many useful exchanges. His passion for, and knowledge of, the subject were a source of inspiration which helped to develop the original theme of the work. My colleagues and friends in the Law Department at the University of Teesside have provided significant support during some very difficult times. I am eternally grateful for the encouragement, advice and practical assistance they have given me, especially in the last few weeks prior to submission. My family and friends deserve a huge thank you, not least for putting up with my unsociable behaviour. Thanks are especially due to Dad, Ann, Marie and Stephen for their unrelenting support and patience. I will never forget what they have done for me. Finally, the biggest thanks of all are reserved for my Mam, who instilled in me that anything is possible with hard work and determination. Contents Declaration Acknowledgements Table of cases viii Table of legislation xii Abstract xiii Chapter One: Introduction 1 1.1 Introduction to the thesis: aims and objectives 1 1.2 Defining necessity, self-defence and duress 3 1.3 Defining 'innocent persons' 5 1.4 Overview of the thesis 6 Chapter Two: Principles of criminalisation 12 2.1 Introduction to chapter two 12 2.2 The main philosophical approaches to criminalisation 13 2.3 Autonomy and the liberal philosophy 16 2.3.1 Autonomy and the criminal law 16 2.3.1.1 The 'harm principle' 19 2.3.1.2 The meaning of/7arm 21 2.3.1.3 Harm, wrongful setbacks and defences 25 2.3.1.4 Not a//wrongful harm should be criminalised 26 2.3.1.5 Criticisms of the harm principle 29 2.3.2 Summary of the liberal approach 31 2.4 Legal Moralism 32 2.4.1 The enforcement of morals and the criminal law 32 2.4.1.1 Strict legal moralism 33 2.4.1.2 Social disintegration theory 34 2.4.2 Summary of legal moralism 36 2.5 Paternalism 38 2.5.1 Paternalism and the criminal law 38 2.5.2 Criticisms of paternalism 40 2.5.3 Summary of paternalism 40 2.6 Conclusion to chapter two 41 Chapter Three: Intruding on the rights of innocent persons in 45 their 'best interests' 3.1 Introduction to chapter three 45 3.2 The doctrine of necessity 48 3.3 Theoretical foundations of necessity 53 3.3.1 The distinction between justification and excuse 53 3.3.1.1 Justifications 54 IV 3.3.1.2 Excuses 56 3.3.1.3 Is the distinction important? 58 3.3.2 Necessity: justification or excuse? 60 3.3.3 Necessity as a justification 61 3.3.3.1 Lesser evils justification 62 3.3.3.2 Rights-based justification 64 3.4 The conditions of necessity 65 3.5 Intruding on the rights of a competent patient 68 3.5.1 The primacy of patient autonomy 69 3.5.2 Undermining patient autonomy? 71 3.6 Intruding on the rights of an incompetent patient 82 3.6.1 Defining incapacity 83 3.6.2 Emergency treatment of incapacitated persons 87 3.6.3 Non-emergency treatment of incapacitated persons 88 3.6.3.1 Treatment in the patient's 'best interests' 89 3.6.4 Specific examples of necessary intrusions on the rights of incapacitated persons 95 3.6.4.1 Necessity and organ donation 95 3.6.4.2 Necessity and non-therapeutic sterilisation 97 3.6.4.3 Necessity and detention 101 3.7 Conclusion to chapter three 107 Chapter Four: Intruding on the rights of innocent threats 111 4.1 Introduction to chapter four 111 4.2 The doctrine of self-defence 114 4.2.1 Introduction to self-defence 114 4.2.2 The scope of self-defence 116 4.2.2.1 Culpable unjust threats 116 4.2.2.2 Innocent unjust threats 117 4.3 Theoretical foundations of self-defence 120 4.3.1 Introduction to the theoretical challenges 120 4.3.2 Self-defence: justification or excuse? 122 4.3.3 Putative self-defence: justification or excuse? 123 4.3.4 A summary of the self-defence classification 125 4.3.5 Self-defence as a justification 125 4.3.6 Consequentialist approaches 126 4.3.7 Personal partiality approach 131 4.3.8 The doctrine of double effect 133 4.3.9 Rights-based approaches 134 4.3.9.1 Introduction to rights-based philosophies 134 4.3.9.2 Rights and a supplementary theory of forfeiture 137 4.3.9.3 Forfeiture and culpability 138 4.3.9.4 Other criticisms 142 4.3.10 A summary of the moral basis of self-defence 143 4.4 The conditions of self-defence 145 4.4.1 The necessity requirement 146 4.4.1.1 The duty to retreat 147 4.4.1.2 The immediacy requirement 152 4.4.1.3 Mistake 159 4.4.2 The proportionality requirement 165 4.4.2.1 The need for a proportionality requirement 165 4.4.2.2 The content of the proportionality requirement 167 4.4.3 A summary of the conditions of self-defence 171 4.5 Innocent incidental threats: self-defence or necessity? 174 4.5.1 Defining innocent incidental threats 174 4.5.2 Self-defence and innocent incidental threats 175 4.5.3 Necessity and innocent incidental threats 182 4.5.4 Justifying intrusions on the rights of innocent incidental threats: a summary 187 4.6 Conclusion to chapter four 189 Chapter Five: Intruding on the rights of innocent bystanders 193 5.1 Introduction to chapter five 193 5.2 The doctrine of duress 195 5.3 Theoretical foundations of duress 197 5.3.1 A negation of actus reus, mens rea or an exculpatory defence? 197 5.3.2 Duress: justification or excuse? 200 5.3.3 Duress as an excuse 204 5.3.3.1 Duress and character 204 5.3.3.2 Duress and lack of choice 206 5.4 Duress and violating the right to life of an innocent bystander 210 5.4 .1 The scope of duress 210 5.4.2 A rationale for the decision in Howe? 213 5.4.3 Criticisms of the decision in Howe 216 5.4.3.1 The demand of heroism argument 217 5.4.3.2 The inefficacy of punishment argument 220 5.4.3.3 The legislative activity argument 222 5.4.3.4 The mitigation and prosecutorial discretion argument 223 5.4.3.5 The precedent argument 226 5.5 The conditions of duress 228 5.5.1 The qualifying conditions 229 5.5.1.1 Proportionality 229 5.5.1.2 The nature of the threat 230 5.5.1.3 Threats to a third party 232 5.5.1.4 Immediacy 233 5.5.1.5 Nomination of the crime 234 5.5.1.6 Voluntary exposure 235 5.5.2 The evaluative condition 237 5.6 Necessity, duress of circumstances and innocent bystanders 244 5.6.1 Necessity and innocent bystanders 244 5.6.2 Duress of circumstances and innocent bystanders 250 5.7 Conclusion to chapter five 254 VI Chapter Six: Conclusion 257 6.1 Introduction to chapter six 257 6.2 Principles of criminalisation 257 6.3 Intruding on the rights of innocent persons in their 'best interests' 259 6.4 Intruding on the rights of innocent threats 260 6.5 Intruding on the rights of innocent bystanders 262 6.6 Criminal responsibility for intrusions on the rights of innocent persons 263 Bibliography 265 VII Table of Cases Abbott V.