General criminal defences—overview

This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the unlawful consequences of their conduct...

Intention Intention denotes the result the defendant seeks. Offences are often categorised as ones of basic intent or specific intent. The Court of Appeal has labelled this division elusive. Even so, the Court offered guidance on specific intent: crimes of specific intent require proof of purpose or consequence, and include, though are not limited to, cases where the objective extends beyond the actus reus, sometimes called ulterior intent. The Court also endorsed the analysis that a line can be drawn between (i) intention considered in light of the actor’s purposes and (ii) intention viewed apart from those purposes. In some instances a general intent accompanying the act is all that is needed to constitute the offence; in others, in addition to that general intent, there must be a specific intent linked to the purpose for which the act is done. Put plainly, specific intent offences require an intention to secure something beyond the act itself, whereas basic intent offences require only an intention to carry out the act...

Self-defence is an absolute defence to offences committed through force, extending even to allegations of murder. If a jury concludes the defendant acted in self-defence, they must acquit. The common law defence was carried into statute by the Criminal Law Act 1967 (CLA 1967), with additional clarification in section 76 of the Criminal Justice and Immigration Act 2008 (CJIA 2008). The defence is available where a defendant uses ‘reasonable force’ to: defend themselves defend another person defend property prevent crime assist in the lawful arrest and apprehension of offenders The defence of self-defence has two limbs: firstly, were the circumstances, as the defendant genuinely believed them to be, such that using force was necessary? This is the subjective test secondly, was the nature and degree of force used reasonable in those perceived circumstances? This is the objective test Reasonable force—defendant’s genuine belief Whether the force is considered ‘reasonable’ is judged by reference to the situation as the defendant honestly believed it to be...

Duress by threats Duress by threats furnishes a full defence to any criminal charge save for murder, attempted murder and, potentially, treason. It operates where the accused commits the offence with intention yet is driven to act by another’s threat, or reasonably believes a threat has been issued, that, unless they commit the offence charged, they or a third person will suffer harm. The evidential basis for duress must be put forward by the defendant; once that is done, the prosecution bears the burden of disproving the claim beyond reasonable doubt. See Practice Note: Burden and standard of proof in criminal proceedings. The assessment entails both subjective and objective tests, to be determined by the jury following directions provided by the judge. The defence will succeed only if, when applying both limbs, the jury are not satisfied beyond reasonable doubt that the prosecution has excluded duress...