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Law Sem 1, Yr1 > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

What is criminal law

A

System of law that prohibits conduct that is or has the potential to be harmful in a series of offences created by statute and/or common law

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2
Q

Punishment functions

A
  • Incapacity
  • Retribution
  • Rehabilitation
  • Deterrence
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3
Q

Who murder harms

A

Victim
Victims’ family and friends
People who don’t know victim
Society
Public services

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4
Q

2 pillars of criminal liability

A

Responsibility
Blameworthiness

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5
Q

The Harm Principle

A

The only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others
This is based upon utilitarianism

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6
Q

Utilitarianism

A

The maximisation of happiness for the maximum number of people

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7
Q

Hart-Devlin Debate

A

Hart
- Law should not be based upon popular moral consensus in the absence of any other identifiable harm

Devlin
- Part of the role of the law is to reflect society’s repugnance for conduct that is socially injurious and distasteful

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8
Q

Tension in criminal law between?

A

Paternalism
Autonomy

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9
Q

Paternalism

A

The State limits what we can do for our own good

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10
Q

Autonomy

A

We can do what we want even if it’s not good for us

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11
Q

Harm arguments of pornography

A
  • Unwary viewers
  • Broader social impact
  • Lack of voluntary participation
  • Escalation of explicit content
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12
Q

Actus non facit reum nisi mens sit rea

A

The act does not make one guilty unless the mind is guilty
Gives rise to 2 criminal liability ingredients
- Actus reus
- Mens rea

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13
Q

Actus reus

A

Guilty act
What must a person not do?

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14
Q

Mens rea

A

Guilty mind
What must a person think at the time?

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15
Q

Definition of murder

A

Unlawfully
Kills
Any reasonable creature
In rereum natura
Under the King’s peace
With malice afterthought
Express malice
Implied malice
Death occurs within yr and a day (abolished in 1996)

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16
Q

In rereum natura

A

‘In the nature of things’ Means ‘in existence’ or ‘living’ so it excludes, for instance, unborn babies

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17
Q

Structure of criminal liability

A

Actus reus
Mens rea
Defence

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18
Q

What are the 2 circumstances that you can be acquitted for criminal damage

A

That you believe the owner of the property gave consent
You act the way you do in order to protect some other piece of property

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19
Q

What are the 2 tests of criminal liability

A

Objective test
Subjective test

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20
Q

Subjective test

A

A defendant will be reckless if he foresaw the risk that property would be destroyed or damaged at the time of the act that caused the damage or destruction of property belonging to another

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21
Q

Objective test

A

A defendant will be reckless if a reasonable person would have realised that property would have been destroyed or damaged at the time of the act that caused the damage or destruction of property belonging to another

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22
Q

What is real property

A

Land

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23
Q

Criminal Damage Act 1971

A

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence

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24
Q

English and Welsh age of criminal liability

A

10
Since 1968

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25
Q

What are conduct crimes

A

Criminal offenses that are defined by the actions of an individual, rather than by the consequences of those actions
Must be voluntary to give rise to criminal liability
Must be in control of their own body and mind

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26
Q

Conduct crimes examples

A

Theft
Assault
Drug possession

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27
Q

Result crimes

A

Focus on the outcome of a person’s actions

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28
Q

Result crime example

A

Homicide
Centers on the death of an individual, regardless of the perpetrator’s intent

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29
Q

How does criminal liability generally require a positive act

A

Requires a positive act, known as “actus reus,” which refers to the physical act or conduct that constitutes a crime
Requirement of positive action is also consistent with the idea of being responsible for doing something wrong

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30
Q

Acts and omissions

A

Criminal liability based upon prohibition is simple
- Something is prohibited and a person will be liable if he acts in contravention of that prohibition
Because inaction is infinite it makes an unsatisfactory basis for criminal liability
But in some cases failure to act can lead to liability but only where there is a legal duty to act

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31
Q

Duty of easy rescue

A

A legal obligation to assist someone in peril, but it varies by jurisdiction
In many places, there is no general duty to rescue, meaning individuals aren’t legally required to help others in distress unless a special relationship exists (like between parent and child, or in certain professional contexts)
English law does not compel people to do good deeds, only not to do bad things

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32
Q

Arguments against a general duty to act

A

An interference with individual liberty
Wrongful action or wrongful inaction?
Difficult to prove whether the original jeopardy or the failure to rescue cause death
Are practical problems with inexpert rescuers

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33
Q

Duty to act

A

In English law, actus reus of an offence can only be satisfied by an omission if the defendant was under a duty to act

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34
Q

When does a duty to act rise

A

Imposed by statute
Due to the existence of a contract
Nature of relationship creates a duty
Has been a voluntary assumption of care

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35
Q

Duty to act created by statute

A

Statute may impose an obligation to act in specific circumstances in which case a failure to act in the way required will satisfy the requirements of the offence

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36
Q

Duty to act created by statute example

A

s6 of the Road Traffic Act 1988
Creates a obligation for motorists to provide a specimen of breath if required to do so
Failure to comply with this duty to act is an offence

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37
Q

Duty to act created by contract

A

What action the contract in question requires to be done
A failure to perform a contractual duty can satisfy the actus reus of an offence

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38
Q

Duty to act created by contract example

A

Pittwood (1902) 19 TLR 37
 Defendant was responsible for the manual operation of a level crossing
 Failed to close the gates one day and the victim was struck by a train and died

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39
Q

Duty to act arising from the nature of a relationship

A

Accepted that parents have a duty to act in relation to minor children

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40
Q

Duty to act arising from the nature of a relationship example

A

Evan [2009] EWCA Crim 650
- Mother was liable for manslaughter for failing to summon help when her 16 yr old daughter collapsed after taking heroin
- Her older sister was not liable of their relationship (but was liable as she supplied the drugs)

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41
Q

Duty arising from a voluntary assumption of care

A

Law presumes that those who take on responsibility of care of others will not abandon it once it has been assumed

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42
Q

Duty arising from a voluntary assumption of care example

A

Stone and Dobinson [1977] QB 354
- CoA ruled that the defendants had assumed a duty towards the victim who was vulnerable and anorexic after she came to live in their home
- They sporadically tried to get her medical assistance, brought her food and helped her to wash
- Was held that their efforts to provide care gave rise to an ongoing duty which obliged the defendants to summon help of to care for the victim more effectively to safeguard her health
- Their failure to do this led to their liability for manslaughter when the victim died

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43
Q

What is the chain of causation

A

The link between a defendant’s actions and the ultimate harm or consequence that results from those actions in a legal context

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44
Q

What are the 3 elements of the chain of causation

A

 Factual causation
 Legal causation
 Absence of a novus actus interveniens

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45
Q

What is a novus actus interveniens

A

An event or act that occurs after the defendant’s conduct and contributes to the harm, potentially altering the defendant’s liability
Chain of causation between act and death must be unbroken

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46
Q

Factual causation

A

Defendant must be a ‘but for’ cause of the prohibited result
‘But for’ the defendant’s actions, would the victim have died in the same way at the same time?
Establishes a preliminary link between the defendant’s act and the victim’s death
Necessary but not sufficient
Is not enough to solely establish actus reus

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47
Q

Factual causation example

A

White [1910] 2 KB 124 (CA)
- Defendant poisoned his mother’s drink intending to kill her but she died of a heart attack before the poison had time to work

48
Q

Modern exploration of factual causation

A

‘But for’ event is not necessarily enough to be a legally effective cause

49
Q

Modern exploration of factual causation example

A

Hughes [2013] UKSC 56, [2013] 1 WLR 2461
If a woman who asked her neighbour to go to the station in his car to collect her husband would be held to have caused her husband’s death if he perished in a fatal road accident on the way home
By the test of common sense, whilst the driving by Mr Hughes created the opportunity for his car to be run into by Mr Dickinson, what brought about the latter’s death was his own dangerous driving under the influence of drugs
Was a matter of the merest chance that what he hit when he veered onto the wrong side of the road for the last of several times was the oncoming vehicle which Mr Hughes was driving
He might just as easily have gone off the road and hit a tree, in which case nobody would suggest that his death was caused by the planting of the tree, although that too would have been a sine qua non (without which, not)

50
Q

Legal causation

A

Role is to isolate the culpable cause(s) of the prohibited result
Needs not be the main cause of death of the most immediate cause of death but it must make a significant contribution to the victim’s death
Is a policy-driven tool that is used to determine which of the factual causes is the one that is legally significant in causing the prohibited result

51
Q

Legal causation example

A

Wallace [2018] EWCA Crim 690
- Defendant threw acid at victim causing widespread life-altering injuries leaving him in constant pain
- Died as a result of euthanasia in Belgium
- Issue in case was whether defendant was legal cause of victim’s death
- CoA held that the acts of the victim and the doctors ‘were not sensibly divisible’ and ‘that the doctors’ (unlawful) conduct in carrying out with their hands what he could not carry out with his own was but one link in the chain of events instigated by the defendant’

52
Q

Novus actus interveniens example

A

Smith [1959] 2 QB 35
- Solider stabbed with bayonet
- Was dropped twice on the way to medical centre where he received incorrect medical treatment
- If at time of death original wound is still an operating cause and a substantial cause, then death can properly be said to be result of the wound albeit that some other cause of death is also operating
- Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound
- Only if the second cause is so overwhelming as to make original wound merely part of the history can it be said that the death does not flow from the wound

53
Q

The thin skull rule

A

“Take your victim as you find him” rule
A legal principle in tort law that holds a defendant liable for the full extent of a plaintiff’s injuries, even if those injuries are more severe than what might be expected due to a pre-existing condition
So existence of a medical condition that makes the victim especially vulnerable to injury will not allow the defendant to avoid liability

54
Q

Thin skull rule example

A

Blaue [1975] 1 WLR 141
- Defendant stabbed victim necessitating hospital treatment
- Her life would have been saved by a blood transfusion but was refused on religious grounds
- Defendant argued this broke the chain of causation as original injuries were no longer an operating and substantial cause of death
- Defendant should have taken victim as they found them
- Stab wound caused her death
- Fact the victim refused to stop this end coming did not break the causal connection between the act and death

55
Q

What will break chain of causation

A

Defendant will only be relieved of responsibility in extreme circumstances as his original act put the victim at risk of death
A novus actus interveniens will only rarely take over the cause of death
Is possible for both the original defendant and the person who causes the intervening act to be liable
Will break chain of causation if it takes over as an independent cause of death

56
Q

Medical negligence

A

Poor quality of incorrect medical treatment will only very rarely break the chain of causation

57
Q

Medical negligence example

A

Cheshire [1991] 1 WLR 844
- Defendant shot the victim who needed hospital treatment including a tracheostomy
- 2 months later complications from the tracheotomy led to the victim’s death
- Was that medical treatment only breaks the chain of causation in ‘most extraordinary and unusual circumstances’ when the medical treatment is independent of the defendant’s acts and ‘so potent in causing death’ that the defendant’s contribution is insignificant
- Question is not what was the dominant cause of death but whether the defendant’s act was a significant cause of death

58
Q

How to define intention of offence

A

Start with actus res
Identify what prohibits it
Assess if was defendant’s purpose to engage in the prohibited conduct or to cause the prohibited consequence

59
Q

Mens rea of murder

A

Malice afterthought
Covers both intention to kill and intention to cause serious harm

60
Q

Intention to kill

A

Express malice

61
Q

Intention to cause serious harm

A

Implied malice

62
Q

“But I didn’t mean to harm anyone”
Mens rea for murder

A

Very difficult to know what someone is thinking
Creates problems for the law in establishing mens rea as is based upon defendant’s thoughts and defendant can deny having the requisite thoughts at the time of the prohibited act
But law would be ineffective if it allowed denial to allow a defendant to avoid liability

63
Q

Criminal Justice Act 1967
Mens rea killing

A

Court/Jury in determining whether person has committed offence
-Shall not be bound in law to infer that he intended/foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions
BUT
-Shall decide whether he did intend/foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances

64
Q

Unwanted consequences of deliberate actions

A
  • Courts are clear that a person might intend to bring about a particular result whilst at the same time not desiring it to happen
  • If it is not the defendant’s stated intention to cause death/serious injury, such intention will only be found if the defendant was aware that the death/serious injury was a virtual certainty of his actions
65
Q

How to determine oblique intention

A

How probable were the consequences?
 The answer must be ‘virtual certain’

Did the defendant foresee that consequence?
 If yes, they were intended

66
Q

Direct intention

A
  • The defendant acts with the purpose of causing death/grievous bodily harm,
  • Defendant does the prohibited conduct and causes prohibited consequences (victim’s death)
  • Easy to understand the blameworthiness of the defendant’s state of mind
67
Q

Oblique intention

A
  • Defendant acts with some other purpose but is aware death of serious injury is inevitable
  • Defendant does something that causes the prohibited consequence (victim’s death)
  • May be harder to recognise the blameworthiness of the defendant’s state of mind
68
Q

Transferred malice

A

“But I meant to kill someone else…”
What if the defendant did intend to kill person A but it is person B who dies?
- Mens rea of murder doesn’t require that the defendant intends to kill a particular person, just a person, and so intention to kill or cause serious harm is a general one that is transferred from the intended victim to the actual victim
* Mens rea cannot transfer to an offence of a different kind

69
Q

Transferred malice example

A

R V Saunders and Archer (1573) 2 Plowd 473 (HC)
 First defendant wanted to kill his wife so that he could marry another woman
 He baked an apple with arsenic and gave it to his wife
 She ate a small piece and gave the rest to her three-year old daughter who died as a result
Was held that the defendant had an intention to kill when he gave his wife the apple and the fact that the wrong person died was immaterial to his liability
 It would have been different if he had set poison to kill rats around the house and it had been eaten by a person who died as a result as there would be no intention to kill that could transfer to a different victim

70
Q

Impermissible double transfer of malice

A

Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 (HL)
 Considered whether mens rea could transfer from a pregnant women to an unborn child
 The defendant stabbed his partner in the abdomen intending to cause her serious harm
 If she had died, he would have had the mens rea for murder
 She went into premature labour 17 days later
 The child survived for 121 days
 The defendant was acquitted of the child’s murder and the Attorney-General referred the case to the Court of Appeal under s36 of the Criminal Justice Act 1972 for clarification on the point of law
 The House of Lords affirmed that an unborn child is not a person who can be capable of being killed for the purposes of murder as it is not capable of life independent of the mother
 As such, the doctrine of transferred malice could not operate to give rise to liability for the death of an unborn child
 Liability would require a ‘double transfer’ from the mother to the unborn child to the person that the unborn child would become if they were born alive

71
Q

Subjective test of recklessness

A

Recognition of a risk

72
Q

Problem with subjective test of recklessness

A

Is consistent with the principle that criminal liability is based upon volitional wrongdoing
Person who foresees the risk that a prohibited consequence might occur if he engages in a particular course of conduct can be said to be blameworthy because he knowingly takes the risk of causing the actus reus of an offence
Difficulty is that it allows a person to avoid liability despite causing the actus reus of an offence if they are blind to the consequences of their actions

73
Q

Subjective test of recklessness eg

A

Stephenson [1979] QB 695 (CA)
 Defendant sheltered in a haystack and started a small fire to keep warm
 The risk of the haystack catching fire are obvious but the defendant had mental health problems that meant that he did not realise this and so he did not foresee the risk and could not be liable

74
Q

Recklessness objective test

A
  • Failure to recognise an obvious risk
  • Considers not what risk defendant foresaw but what risk a reasonable person in his position would have foreseen
75
Q

Problem w objective test of recklessness

A

 Test based upon a failure to recognise a risk that would be obvious to a reasonable person will operate harshly on a defendant who does not have the reasonable capability or ability to recognise risks of a reasonable person

76
Q

Objective test of recklessness eg

A

R v G [2003] UKHL 50,[2004] 1 AC 1034
 Two boys aged 11 and 12 went camping overnight without permission
 They set fire to some newspapers they found in a bin and the fire spread and damaged a nearby supermarket
 The trial judge, in answering a question from the jury about why they had to look at the situation from the stance of a reasonable man, said ‘I said that some may feel it is a harsh test, and there are many who would be sympathetic to that view
 But sympathy does not permit me to give you a direction on the law other than as it is

77
Q

Rejection of objectivity test of recklessness

A

Failure to recognise an obvious risk was as blameworthy as taking a risk that was known and recognised
Is clearly blameworthy to take an obvious and significant risk of causing injury to another
But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication) one genuinely does not perceive the risk
Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment
~Lord Bingham

78
Q

Issue w objectivity test w children

A

Rejected by HoL because
- Would still offend against the fundamental principle that criminal liability ought to be based upon the state of mind of the particular defendant in order to ensure that he is culpable and deserving of punishment
- Would not resolve the potential unfairness of the law in relation to other defendants who had a mental state that meant that the reasonable adult was not an appropriate comparator
- Would open the door to endless appeals based upon arguments about what characteristics it would be appropriate to give to the reasonable man in order to create an appropriate comparator
- Is nothing in the statute that justifies the courts in creating a separate rule of recklessness in relation to children

79
Q

Coincidence of actus reus and mens rea

A

Aactus non facit reum nisi mens sit rea

80
Q

Aactus non facit reum nisi mens sit rea

A

The act does not make one guilty unless the mind is guilty AT THE TIME OF THE ACT
Illustrates challenges for law when act which causes death does not coincide w required state of mind

81
Q

Voluntary manslaughter

A

Circumstances where the defendant satisfies both the mens rea and actus reus of murder but has a partial defence

 Loss of self-control
 Diminished responsibility
 Suicide pact

82
Q

Involuntary manslaughter

A

 Constructive manslaughter
 Gross negligence manslaughter
 Reckless manslaughter
 Corporate manslaughter

83
Q

Voluntary manslaughter in Homicide Act 1957

A

S3
Law recognises human weakness and fallibility: being provoked or losing control as an excuse

Test by reasonable person for loss of self-control

84
Q

How does the law favour male defendants under voluntary manslaughter

A

 “The history of the partial defence of provocation has led to a commonly held belief that that defence can be abused by men who kill their wives out of sexual jealousy and revenge over infidelity. That erodes the confidence of the public in the fairness of the criminal justice system … we want to make it clear that it is unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred.”
Hansard, 2009

85
Q

Loss of control
S54 and S55 under Coroners and Justice Act 2009 (CJA)

A
  • “Special” = only applicable to the charge of murder
  • “Partial” = where successful, the defendant will be guilty of manslaughter instead of murder
  • Burden of proof: defence raises the issue
  • Prosecution must prove beyond reasonable doubt that it is not applicable
86
Q

Requirements for loss of control

A
  • Loss of self-control
  • Due to a qualifying trigger
  • Person of defendant’s sex and age with normal degree of tolerance might have acted similarly
87
Q

Must the loss of self-control be sudden?

A

CJA
S54(2) = does not matter whether was sudden
S54(4) = does apply if D acted in desire for revenge

88
Q

Fear of serious violence
Qualifying triggers for voluntary manslaughter

A
  • Applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person
  • But (6) emphasises how fear of serious violence is disregarded if it used for purpose of providing an excuse to use violence
  • Law commission has clarified that this trigger for LOC will be used when
  • D’s act is unreasonable (D overreacts)
  • Contexts where “serious violence” is anticipated but not imminent (e.g. cases of domestic violence and abuse)
89
Q

Things done or said
Qualifying triggers for voluntary manslaughter

A
  • S55 (4)
  • Applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which
     Constituted circumstances of an extremely grave character and
     Caused D to have a justifiable sense of being seriously wronged
  • R v Zebedee [2012]
  • DPP v Camplin [1978]
  • Humphreys [1995]
  • S55 (6) adds exception to this trigger
  • (b) a sense of being seriously wronged by a thing or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence
90
Q

Sexual infidelity as exception to qualifying trigger for voluntary manslaughter

A
  • S55 (6)(c)
  • Fact that a thing done or said constituted a sexual infidelity is to be disregarded
  • Ministry of Justice (2008)
  • “We want to make it absolutely clear that sexual infidelity on the part of the victim can never justify reducing a murder charge to manslaughter”
  • Claim of sexual infidelity is admissible in the context of evaluation but not as the sole qualifying trigger
91
Q

Subjective test for voluntary manslaughter

A

D would react as he did in similar circumstances

92
Q

Objective test for voluntary manslaughter

A

A reasonable person would have reacted as D did

93
Q

Mixed test for voluntary manslaughter

A

A person with some of D’s characteristics and normal degree of tolerance and self-restraint might have reacted as D did

94
Q

What circumstances are relevant to D’s conduct that they bear for their tolerance or self-restraint
S5(3) CJA
Voluntary manslaughter

A

 Short temper
 Jealousy
 Irritability
 Personality or mental disorders?

95
Q

Personality/Mental disorders as circumstance of D for voluntary manslaughter

A

“if a mental disorder has a relevance to the defendant’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection (3), and the jury will be entitled to take it into account as one of the defendant’s circumstances under s.54(1)(c)

96
Q

Intoxication as circumstance of D for voluntary manslaughter

A

Asmelash [2013] = loss of control defence must be approached without reference to the defendant’s voluntary intoxication

97
Q

When does the D have diminished degree of responsibility

A
  • Situations where the defendant cannot be compared with the “person with normal degree of restraint”
    D commits the offence because of an “abnormality of mental functioning”
  • Does not completely override D’s ability to reason
98
Q

Partial defence for voluntary manslaughter application

A
  • Applicable only to the charge of murder
  • Leads to a verdict of manslaughter
99
Q

Requirements for diminished responsibility

A
  • Abnormality of mental functioning
  • Abnormality was caused by a recognised medical disease
  • Abnormality significantly impaired D’s understanding, rational judgement or exercise of self-control
  • Abnormality provides an explanation for D’s conduct
100
Q

Plea and burden of voluntary manslaughter

A
  • Possible to plead guilty to a charge of manslaughter on the ground of diminished responsibility
  • Prosecution must have clear evidence to accept the plea
101
Q

Recognised medical conditions for diminished responsibility

A

Depression
Paranoia
Psychopathy
Battered women syndrome
Pre-menstrual tension
Acute intoxication
Alchoholism

102
Q

Substantially impaired D’s ability circumstance of voluntary manslaughter example

A
  • Young boy, thinking that his friend could have a second life, loses his temper and kills a friend who took his video game away. (couldn’t completely understand the nature of his act)
  • Boy who kills another because his older brother has said so (impaired rational judgement)
103
Q

Different defences in trial

A
  • “Yes , I’ve done it…” – plead guilty to the charge
  • “No, I did not do it…” – deny the accusation (and present counter-evidence)
  • Third possibility: “Yes, I did do it, but… “- it was self-defence…- I was forced to do it
104
Q

What defences can one use

A

Self-defence
Duress
Necessity

105
Q

What is self-defence

A
  • D or somebody else were (or D believed that they were) facing a threat
  • D used a reasonable level of force against the threat (or the perceived threat)
  • Effect: If successful, it leads to an acquittal. (“complete defence”)
106
Q

Legal sources of self defence

A
  • Common Law
  • Criminal Law Act 1967, s3
  • Criminal Justice and Immigration Act 2008, s76
107
Q

Requirements for self-defence

A

 V must pose (or D must believe that V poses) a threat
 The threat must be (or D must believe that it is) unjustified
 D must use force and D must believe that theuse was reasonable
 The amount of force used by D must be reasonable (in the circumstances as D believed them to be)
 D must be acting to defend themselves, another, or property

108
Q

Key elements for necessity
Lesser of two evils defence

A
  • Imminent danger
  • No legal alternative
  • Proportionality
  • Reasonableness
109
Q

Balance of interests for necessity

A
  • The application of necessity requires the court to weigh the competing interests at stake
  • The interests at stake were the lives of the parties
  • There is neither a clear way to compare the relevant interests nor a reason to suppose that the life of Parker was less worthy than the other
110
Q

Floodgates that necessity can open

A
  • Necessity defence might become “the legal cloak for unbridled passion and atrocious crime
111
Q

Requirements for necessity

A
  • The act is needed to avoid inevitable and irreparable evil
  • No more should be done than is reasonably necessary for the pur-pose to be achieved
  • The evil inflicted must not be disproportionate to the evil avoid
112
Q

Duress (by threats)
Self-defence

A
  • D commits a crime because of threats of death or GBH
  • A reasonable person with D’s characteristics would have acted as D
  • D is acquitted
113
Q

Scope ofduress

A

General defence but are common law exceptions
 Murder
 Attempted murder
 Certain forms of serious treason

114
Q

Elements of duress

A

 The link is not “causal” (we do not use the tests of causation)
 The threat must figure as one of the main reasons for committing the wrong
 The belief in the threat must be reasonable
 Credibility requirement: good grounds to believe that the threat can be carried
- The (perceived) threat must be one of death or GBH directed to D or to anyone close to D

115
Q

Example of nature of threat for duress

A

 “If you don’t pay your debts, there will be violence”, “If you don’t rob a bank to pay your debts, there will be violence”
 Only 2nd would make duress available as a defence

116
Q

Reasonable steadfastness rule

A

 No expectation of heroism
 Which characteristics of D can be taken into account?
 For what purposes are characteristics relevant

117
Q
A

Law Sem 1, Yr1 (4 decks)

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