8) General defences Flashcards
When is the defence of duress used
Where the defendant has been forced to commit a crime due to a threat or circumstance
What must he threat be of ignorer for it to be duress
- Death
- Serious injury
When can lesser threats be considered in the case of duress
- Where there is a cumulative effect of threats
- R v Valderrama (gay + bankrupt as well as serious injury)
What happened in the case of R v Cole and what did it show (duress)
Duressor did not specify a crime to commit, general threats are not considered
- Therefore, the crime must be specified of the defence fails
How do we prove duress
Two part test
- Subjective and objective
What is the subjective test for duress
Where the defendant is asked whether they truly believed they had no other option
What is the objective test for duress
Whether, the reasonable person with the same characteristics would of acted in the same way
What case said what characteristic cannot be considered for duress
R v Bowen
Said low IQ could not be considered
In what case will the defence fail if the victims have a…….
If there is/was a safe avenue of escape (R v Gill - 12hrs to report)
- However, police protection isn’t always successful
What does the law say on self induced duress
Defence will fail for self induced duress
- R v Hassan
What is a problem with self induced duress not being allowed
- Law punishes people trying to change rather than rewarding them
What crimes can duress not be used for + 2 cases
Murder R v Howe and attempted murder R v Gotts
What kind of defence is self defence
- All or nothing (there is NO drop down)
What section of hat act states protection of property
S.3 Criminal Law Act 1967
What two things need to be decided for self defence and who decides
Whether it was,
- Necessary
- Reasonable
Decided by jury
How is the necessity of self defence judged
- Subjective, as to what the defendant ‘honestly believes’
What act talks about mistaken used of self defence
S.76 Criminal Justice and Immigration act 2008 - allows use of mistaken self defence
What condition is not allowed for an self defence mistake + act
Intoxicated mistake
- S.76(5) CJAIA 2008
How is the reasonability of self defence judged
Force cannot be excessive in circumstance
What factors of both v and d is the jury allowed to consider for self defence
- Size and strength
In the case of excessive self defence for murder, can you still use the defence successfully + case
Yes will fail - R v Martin
What does the case of R v Clegg state on self defence
Defence is not available where the danger has passed
What does the law on self defence say about pre-emptive strike
- R v Beckford, you do not need to wait to be attacked first
What does the law on self defence say about running away
- No law on need for retreat
-R v Bird
