1.4 General Defences Flashcards
What is the criterion for the use of force contrary to Article 2 Human Rights?
No more than absolutely necessary
What are the three defences for the use of fatal force under Article 2 Human Rights?
- Defence of any person from unlawful violence (NOT PROPERTY)
- Effect a lawful arrest or to prevent the escape of a person lawfully detained
- Lawfully taken action for the purpose of quelling a riot or insurrection
S3 (1) Criminal Law Act 1967
A person may use such force as is reasonable in the circumstances and in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large
Define ‘reasonable force’
That the degree of force used was reasonable to the circumstances AS THE DEFENDANT BELIEVED THEM TO BE
What force can be regarded as reasonable in householder cases?
Disproportionate force
What is a householder case?
Someone protecting themselves or others from trespassers in their home
Can householder cases include those who work and live in the same building?
Yes
Can you use grossly disproportionate force in protecting yourself from trespassers in your home?
No, never
What is an Osman letter / disruption notice?
Served on persons making them aware that the police have received information that they may be at risk of harm
When must the police take preventative steps (R v Osman)?
When faced with ‘real and immediate risk to life’
Can voluntary intoxication be raised as a defence for offences of specific intent?
Yes
Can voluntary intoxication be raised as a defence for offences of basic intent?
No
Can involuntary intoxication be used as a defence for offences of basic intent?
Yes
Can involuntary intoxication be used as a defence for offences of specific intent?
Yes
Does misjudging the amount of voluntarily ingested alcohol amount to involuntary intoxication?
No
Can you raise a defence of intoxication if you become intoxicated to gain Dutch courage to commit an offence?
No, as the mens rea was formed prior to the intoxication
When can a person use the defence of mistake?
If they negate the mens rea for that offence
Are cases involving mistake judged objectively or subjectively?
Subjectively
What is the appropriate test of ‘mistake’?
Whether the mistaken belief was an honest and genuine one
Is there a duty for persons under arrest to comply with the police?
Yes
Can a person use the defence of mistake if they assault an officer with the intention to resist arrest when the arrest is a mistake?
No - belief in one’s own innocence, however genuinely or honestly held, cannot afford a defence to a charge of assault with intent to resist arrest
Is a defence of mistake one of facts or one or law?
Facts - all people are presumed to know the law once it is made
What is the only exception to a defence of mistake being of facts and not law?
A person appropriating property in the belief that they have a legal right to it
Can you raise the defence of mistake if you rape someone due to being intoxicated and mistaking them for someone else?
No
What is duress?
Where a person is threatened with serious physical injury or death if they do not carry out a criminal act
Is the threat of psychological injury included in duress?
No
Does the threat of pain amount to significant physical injury under the defence of duress?
No
Which offences are the threat of duress not available for?
Murder or attempted murder as a principal OR secondary offender
Can threats of death or serious harm to loved ones allow for a defence of duress?
Yes
Can duress be used for offences of strict liability?
Yes
Under duress, the threat must be the _______ _____ for the defendant to commit the offence
driving force
Under duress, the defendant must have acted as a ____ and ________ person would have acted in the circumstances
Sober and reasonable
Under the threat of duress, when must the threat be intended to be carried out?
At or near the time of the offence
When might the defence of duress be unsuccessful?
If it is determined that the defendant had an opportunity to seek help, escape or neutralise the threat and did not take it
Can a defendant claim the defence of duress if they join a gang or terrorist group who then threatens them with serious harm or death?
Not if the group is inherently violent and the defendant was aware that it was dangerous
What is duress of circumstances?
When the defendant is left with no alternative but to commit an offence in order to escape from a threatening situation or set of circumstances - lesser of two present evils
Which offences is the defence of duress of circumstances not available for?
Murder, attempted murder, treason, offences under Misuse of Drugs Act
Under the defence of duress of circumstances, the actions must be __________ and _________ to the threat presented
Reasonable and proportionate
What is the defence of infancy?
Children under the age of 10 are incapable of criminal responsibility
