Criminal law (Defences 3) Flashcards
What is the defence of provocation?
The defence of provocation is when you commit a crime (specifically murder) without any thought of what doing
Why is provocation not a complete defence?
Because it can only be used as a partial defence to murder to reduce it from a charge of murder to one of culpable homicide
Can provocation be used a plea of mitigation
yes it can for sentences in other crimes
What are examples of a case for provocation?
Fenning v HMA 1985 SCCR 219 and Drury v HMA 2001 S.L.T. 1013
What are the three requirements for the defence of provocation?
1.) Loss of self control
2.) An immediate response
3.) An appropriate and proportionate response to the nature of the provoking act
Test of proportionality in respect of violence for test for loss of self-control in Cosgrove v HMA 1990 JC 333
Can be in response to verbal taunts but they must be extreme
Test of proportionality in respect of violence for test for loss of self-control in Thomson v HMA 1986 S.L.T. 281
Accused stabbed the victim repeatedly with a knife in response to a minor argument
-The violence was grossly disproportionate
What is the response must be proportionate for the case of Thomson v HMA 1985 448 SCCR?
A minor assault is clearly insufficient for a plea of provocation which would palliator the taking a deceased’s life by stabbing
-It takes a tremendous amount of provocation to palliate stabbing a man to death
What is the test for loss of self control for the provocation by reason infidelity?
The test is objective as would an ordinary person been liable to react in the same way
-The case example is Drury v HMA 2001 S.L.T. 1013
Why is the case of HMA v Hill 1941 J.C.59 significant for the defence of provocation?
Verbal confirmation of infidelity may be enough for provocation
-Suspected infidelity was confirmed by wife
Why is the case of Mckay v HMA 1991 J.C.91 significant for the defence of provocation?
Couple need not to be married
Provocation can be argued provided the couple are in a sexual relationship
What is the Scot’s Law Test for provocation ‘ordinary person test’?
if the accused acts in a way that is an overreaction (i.e not the ordinary person) then the court would be entitled to conclude the accused has acted in a way that demonstrated the mens rea for murder
Is self-defence a complete defence?
yes
What is self defence?
Self-defence is when the accused uses justifiable actions in retaliation against someone that uses unlawful force
What must self-defence relate to
self-defence must relate to the violence used
Is there a requirement to demonstrate a loss of self control for self-defence?
There is no requirement to demonstrate a loss self control
What are the three requirements for self-defence?
1.) Imminent danger to life or limb
2.) No reasonable opportunity to retreat
3.) reaction must be proportionate A
For self defence in the Pollock v HMA 1998 S.L.T.880 is it legitimate to act in defence of others for the prevention of rape?
-A killed B to prevent B from raping A’s girlfriend
-Argument was accepted as possible but later rejected
-Violence was not proportionate- the assessment of proportionality of the response is a subjective one and the violence used must not be excessive
If someone is being lawfully attacked can they use self-defence?
yes as if a man sees another man being unlawfully attacked, he is entitled to stop that attack (imminent danger)
For the excuse of ‘reasonable belief’ for self-defence, what does the case example of Leiser v HMA 2008 HCJAC 42 tell us?
-in this case the accused claimed he acted in self-defence on the basis that the deceased was about to attack him with a knife
-the accused’s argument of ‘reasonable belief’ for self-defence was rejected as there must be reasonable grounds for the belief
for the excuse of ‘proportionate response’ for self-defence what happens in the case of Fenning v HMA 1985 S.L.T. 540?
-The accused claimed that he used self-defence as he was threatened by the victim who had a knife
-Accused hit the victim repeatedly with an air rifle and also hit his head on a stone
-The repeated blows constituted cruel excess meaning that self-defence was rejected
How does a person have no opportunity to retreat?
If a person who is under threat cannot escape, and has to use self defence to protect himself from any danger
For the accident of a crime is there any mens rea and actus reus?
Yes there is actus reus even if done by accident but no mens rea
for an accident if the accused lacks the mens rea, can he be held guilty?
no if the accused lacks the mens rea because it was an accident, they are not guilty, irrespective of the circumstances of self-defence
