CRIMINAL LAW- defences (evaluation) Flashcards
2 defences chosen?
defence of consent
self defence
critiscms with defence of consent?
interfering with peoples free choice difference between sentencing horseplay sport should be fun and beneficial euthanisa?
why ‘interfering with peoples free choice’?
why should law interfere - cant consent to injury choose to allow? e.g r v brown
however of ‘interfering with peoples free choice’? (3)
- lead 2 serious injustice-
- difficult to draw line btw what is humane ,what should be allowed and what not’ e.g could someone consent to serious harm - even death? -
- .could be morally and socially unacceptable- could lead to v intimindation and lack of actual consent
why ‘difference between sentencing’?(2)
- r v brown & wilson similar injuries diff sentencing
2. brown guilty no treatment wilson not gulity & treatment
however of ‘difference between sentencing’? (2)
- law must allow exceptions-tattoo and
2. morality issue man & wife rather than 5 random men
why ‘horesplay’? (2)
- resulted in serious injury r v jones consent still defence
- even apply when v dont consent but d mistakenly believed (r v aitken)-honest mistake
however horseplay?
if d honest mistake without defence rough games too risky and society too much to blame for overprotectiveness
why ‘sport should be fun and beneficial’?
should not allow ppl who injured and then give people who cause injury defence simple cause in rules
however ‘sport should be fun and beneficial’?
must be a balance otherwise sport would be too risky or even banned- still unlawful if out of rules
why ‘euthanasia’?
person cannot consent to own death- friend who helps= no defence and guilty of murdr
hw to ‘euthanasia’? (2)
- allowing defence of consent may be morally wrong as only normally allowed for minor matters and
- difficult to prove if v actually consented and real as dead
reform of defence of consent?
dpp issued guidelines with reforms to consent euthan-
what was done in reform of defence of consent?
in 2010 dpp issues guidelines on when prosecutions in cases of assisted killing would and would not take place
critiscms with self defence?
- force used was necessary
- law allows d to protect defend himself rather than wait for v to attack first
- excessive force = lose defence
- ‘line has to be drawn’
- characteristics not allowed to be taken into account
- public opinion
why ‘force used was necessary’?
may be difficult decision and d may have made honest silly mistake e.g hit old lady in dark umbrella thought it was mugger and if jury thought necessary that old lady see attacker unpunished
however ‘force used was necessary’?
unfair to find someone liable if mistake - law accept good samaritan but not if due to intox
why ‘law allows d to protect defend himself rather than wait for v to attack first’?
seen as too lenient as d may misunderstand v actions when v no intent
however ‘law allows d to protect defend himself rather than wait for v to attack first’?
hw unrealistic to expect d to know how severe attack would be could be fatal therfore should premptive stike aslong as proportionate
why ‘excessive force = lose defence’?
problematic as heat of moment difficult for how much force e.g r v martin r v clegg
however ‘excessive force = lose defence’?
if d allowed as much force as wish may choose to delib harm v and use reansble and dispor force exceeding limits in s.76 1 cj and immi act
proposal of excessive force?
current reform proposals if introduced will allow defedant to use anything up to grossly disproportionate force
why ‘line has to be drawn’??
jury may decide that d used force when nec but slightly excessive completely denying d of defence
however ‘line has to be drawn’?
therefore line has to be drawn somewhere and rule, the defence would be unfairly and easily awarded one- juries often use common sense in making dec
why ‘characteristics not allowed to be taken into account’
characteristics make percieve more danger than av person and therefore respond in self defence differently -characteristics not allowed to be taken into account e.g martin
however on ‘characteristics not allowed to be taken into account’?
too lenient on d to allow and would excuse b that should be controlled could plead dr instead
why ‘public opinion’?
tony martin supporters an englishmans home is his castle why should not be able to use self defence to defend it
hwever on public opinion?
people use self defence as excuse to inflict violence- it would be difficult to understand where line drawn . the police and cps should be allowed to consider whether charges are brought
