Chapter 6- General Defences Flashcards
Effect of general defence
D avoids liability entirely
Intoxication defence
Prosecution must prove all the elements of the offence.
Two crucial distinctions
Substances which are intoxicants - Hardie 1985 indicated substance may be regarded as as an intoxicant when it produced effects which would be expect of it.
Voluntary and involuntary intoxication
Allen 1988- Voluntarily intoxicated even if you accidentally exceeds the dose recommended.
For V and Non V D must lack mens rea of the offence. Must be significantly intoxicated in order not to have formed the mens rea of the offence.
Liability where D is involuntarily intoxicated
D to provide proof of intoxication to refute the prosecutions allegation of mens rea.
Kingston 1994
Liability where D is voluntarily intoxicated
Case DPP V MAKEWSKI developed tests
1) specific intent
D can introduce evidence of intoxication asserting that at the time of the offence they did not have the required intention.
2) basic intent
D cannot introduce evidence of intoxication to explain why they were not aware of the risks.
D will be convicted of basic intent Lipman 1970
Mistake defence
The denial of the mens rea as they could not have known of the risk of consequence.
B(a minor) v DPP
Or
D pleads defence which they cannot sustain on actual facts but argues that it would have been available had the facts been as D believed the to be.
BeckFord 1987
Duress and other closely related defences
D compelled to commit offence because of direct threats of harm to them or someone who they are responsible
Or
Duress of circumstance- d compelled to commit offence due to the circumstances they are in, not as a result of threats.
Willer 1986
Two questions jury ask on duress defence
Was the D impelled to act as they did as a result of what they reasonable believed to be a situation in which they had good cause to hear that death or injury would result?
If yea, would sober person of reasonable firmness have responded as D did?
If yes duress applies
Defence if necessity
D must prove they acted on the basis that they chose the option of the lesser two evils. D must show something worse would have happened if they did not commit the offence
Defence of duress threats cannot succeed if…
The crime is murder or attempted murder
D has been at fault in associating themselves with a person or group whom they knew might pressure them to commit and offence.
Two plea of D for duress
Subjective test
Objective test
Subjective test
Ds will must have been over borne by a threat of death or serious injury
Valderrama - Vega 1985
Threat must be against D themself or someone who D regards as reasonably responsible
Shayler 2001
Threat must be made with the purpose of compelling D to commit a particular crime
Hudson v Taylor 1971
Brandford 2016
Hearsay duress will not acquit the D (not direct threat)
Objective test
Graham 1982
Must be evidence that a sober person of reasonable firmness sharing D characterises would have responded as D did.
Relevant characteristics Bowen Age Sex Pregnancy Serious physical disability Recognised mental illness or psychiatric condition
3 Rules of self defence
A person may use reasonable force to defend themselves and their property or to prevent crime
Exception to preventing crime self defence prevention of crime
Where child is under 10 as child under 10 cannot be legally capable of committing a crime
4 common law rules under S76 criminal justice and immigration act 2008 on self defence
Reasonable force is to be judged on the facts and circumstances as D honestly believed them to be s76(3)
An intoxicated mistake about the facts is no defence s76(5)
Excessive or disproportionate force is not reasonable s76(6)6
D is not expected to measure their force of crime prevention s76(7)
Requirements of self defence
Some force must be necessary
D can use self defence where they make a mistake providing the mistake was genuine (BeckFord) not intoxication during or after effects of intoxication (Taj 2018)
Actual force use must be proportionate- Palmer (D uses force they honestly and instinctively thought necessary)
Effect of case Hussain and Martin excessive defence
Public opinion believed it’s wrong that D is restricted by how much force the householder could use against an intruder.
Court stated degree of force is not reasonable if it was grossly disproportionate in the circumstances
Householder rules S76(5A)
S76(5A) determination of disproportionate force
Ask
Whether D force was reasonable in the circumstances
In household case wherever D uses disproportionate force the force will always be unreasonable
Anticipatory self defence
D will not loose defence if they willingly put themselves in harms way and do not retreat. However it must be considered if they did not retreat where they could have, did they use excessive force. BIRD 1985
