The law on self-defence has been ‘clarified’ (section 76(9)) but not amended or consolidated by section 76 of the Criminal Justice and Immigration Act 2008, which came into force in July last year. Section 76 applies to situations where the common law defence of self-defence applies, or the statutory defences under section 3 of the Criminal Law Act 1967.

Section 76 confirms that the question whether the degree of force used by a defence was reasonable in the circumstances is decided by the references to the circumstances as the defendant believed them to be, and thus preserves the subjective test. The issue of the reasonableness of the defendant’s belief is only relevant to whether it was genuinely held.

The section confirms that the defendant is entitled to rely on a belief, whether or not it was mistaken, and whether or not that mistake was reasonable unless, in either case, the mistaken belief was attributable to voluntary intoxication.

The section picks up well-known phrases that summarise the law of self-defence. A person having to use self-defence may not be able to weigh to a nicety the exact measure of any necessary action. What is more, evidence that a person has only done what a person honestly and instinctively thought was necessary constitutes strong evidence that it was a reasonable action. Self-defence includes acting in the defence of another.

At common law, it is only for the defence to raise the issue of self-defence by some evidence. The burden of proof then passes back to the Crown to prove to the criminal standard that self-defence is not made out. This position is not affected by some poor wording in section 76(4)(b).

Defence of duress R v Ali [2008] EWCA Crim 716 further emphasises the extent to which the courts limit the use of the defence of duress as a matter of policy. If a defendant knowingly associates with criminals, the issue is whether the defendant foresaw or should have foreseen the risk of being subjected by threats of violence to commit the crime. He need not be a member of the gang. The test means that it will be difficult for anyone charged with supplying drugs to argue that he was under duress, as it may be argued that anyone associated with drugs suppliers knows or should know the lengths to which they will go to achieve their purpose.

Accessory to unlawful killing In R v Rahman [2008] Crim LR 979, the House of Lords confirmed the very wide liability as an accessory to an unlawful killing. The test to establish such liability was whether the defendant foresaw what the principal might do. It was not the foresight of what the principal intended when he committed the act. Lord Brown said: ‘Thus if B (the secondary party) realises (without agreeing to such conduct being used) that A (the principal) may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture, unless:

(i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon that B contemplates that A or any other participant may be carrying; and

(ii) For that reason A’s act is to be regarded as fundamentally different to anything foreseen by B.’

This definition is so wide that it will be unwise for many suspects to answer detailed police questioning on issues of this sort. It may be very much safer to rely on a short prepared statement and avoid too substantial testing of their knowledge of the principal responsible for the death.

In R v Kennedy [2008] Crim LR 222, the Lords made clear that a person who supplies a drug to a person, who then injects themselves and dies, cannot be liable for the unlawful act manslaughter. There is a crucial break in the chain of causation by the independent action of the deceased to inject themselves.

In R v Byram [2008] EACH Crim 516 the Court of Appeal held that there would be a liability if, as a matter of fact, the drug was jointly administered. However, facilitation of the administration of the drug is not enough. The defendant must be party to the administration itself. However in R v Evans (Gemma) (2009) Times, 7 April, the court relied on the law of gross negligence manslaughter to create a liability. Where a defendant had contributed or created a risk (in the supply of drugs) which he knew or should have known would become a threat to life, a duty arose to take reasonable steps to save the life. The defendant, aware that her half sister had been adversely affected by the drugs, failed to call the emergency services and was liable for manslaughter.

Diminished responsibilityFor those handling allegations of murder, the case of R v Wood [2008] EWCA Crim 1305 helpfully summarises the law of diminished responsibility where the defendant has taken substantial quantities of alcohol at the relevant time. If the taking of alcohol was voluntary, it will be unable to found the defence of diminished responsibility. However, the court must still consider whether the defendant is suffering from alcohol dependency syndrome. It held that it was not inevitable that there be observable brain damage for there to be some abnormality of the mind bringing this defence into play.

In R v Anwoir McIntosh Meghrabi and Elmoghrabi [2008] EWCA Crim 1354, the court has resolved two conflicting lines of authority as to the way in which the Crown may establish that the property involved is ‘criminal property’ within the meaning of the Proceeds of Crime Act 2002.

The court held that to prove that property was criminal property the Crown may either show that the property derived from conduct of a specific kind and that conduct of that kind is unlawful, or by leading evidence of the circumstances in which the property was handled giving rise to an irresistible inference that it could only be derived from crime.

This is a more demanding test than that applied in R v Craig [2008] 2 Archbold News P2, as there must be positive evidence of the origin of the money.

Abuse of processWhile the courts seek to limit arguments based on abuse of process, the Lords in R v Asfaw [2008] UKHL 31 applied the principle to prevent the prosecution proceeding against that defendant.

A refugee in transit who may almost inevitably be in possession of a false passport is provided with a defence by section 31 of the Immigration and Asylum Act 1999. That defence remained available when the defendant was leaving the country if it was in the continuing course of a flight from prosecution, even after a short stop-over.

If that defence was available in ­relation to the false document, it was an abuse of the process of the court then to add an additional charge based on essentially the same facts, to which the special defence was not available.

Anthony Edwards, TV Edwards, London