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Cases - defences - superior orders (not syllabus)

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 Not part of AS or A level syllabus

Arrowsmith (1974) CA

Johnson v Phillips [1975] QBD

Yip Chiu-Cheung v R (1994) PC

 


Arrowsmith (1974) CA

[General Defences - Superior Orders]

Distributed leaflets to British soldiers. Previously the DPP had declined to prosecute. He thought this was all right.

 

Held: Mistake of law would not avail.


Guilty of inciting disaffection.

Johnson v Phillips [1975] QBD

[General Defences - Superior Orders - duress of circumstances]

D ordered by PC to reverse the wrong way up a one-way street to allow ambulances access to an injured person. D refused and was charged with wilfully obstructing a constable in the execution of his duty.

Held: "a constable may direct other persons to disobey traffic regulations if that is reasonably necessary for the protection of life and property"

Whether this may or may not amount to superior orders, or to the defence of necessity was not made clear.

The fact that the D acted pursuant to the order of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the tribunal determines that justice so requires."

Yip Chiu-Cheung v R (1994) PC

[General Defences - Superior Orders]

No general defence of superior orders. In cases involving the police (e.g. acting under cover as part of a criminal gang) the position is: -

'...in such circumstances the authorities would not prosecute the undercover agent but this does not mean that he did not commit the crime'.

Therefore to some extent the fate of such agents lies in the hands of the Crown Prosecution Service.

 

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