Defences Flashcards
Self-Defense under Common Law
D can use force to protect himself; another person; or property
Force must be:
a. necessary; and
b. reasonable
s3 Criminal Law Act 1967
D can use force to prevent a crime
Bailey
Left to the jury to decide; results in a full acquittal
Necessary under s76 Criminal Justice & Immigration Act 2008
D can rely on a genuine belief of circumstances even if they were mistaken in their belief the force was necessary, even if the mistake was unreasonable
Williams
Ds mistaken belief was allowed
Bird
D does not need to show a reluctance to fight
Beckford
D can strike first; D can use self-defence where he apprehends an attack
AG’s Ref 2 of 1984
D can prepare to defend himself, even if it breaks the law
Reasonable under Criminal Justice & Immigration Act 2008
D may not be able to weigh up the exact measure of necessary action;
but if he was doing what he thought honestly and instinctively necessary then this is strong evidence that reasonable action was taken
Clegg
Self-defense will fail if the force used was excessive;
the degree of force used must be measured against the circumstances as D believed them.
the amount of force must be reasonable in the circumstances
s76(5A) CJIA 2008
In householder cases, where D is in a dwelling, not a trespasser, and believed V to be a trespasser, the force will be reasonable unless it is grossly disproportionate.
Bratty v AG for NI
An act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing
A-Gs Ref 2 of 1993
There must be a total destruction of voluntary control
Broome v Perkins
D must act completely without consciousness or control;
here loss of control whilst driving was intermittent so D still maintained enough control to prevent crash
Hill v Baxter
swarm of bees is an external cause
R v T
PTSD from rape is an external cause
Whooley
sneezing is an external cause
additional external causes
effect of a drug, hypnosis, or a blow to the head
Bailey
Automatism cannot be self-induced; automatism will fail where D knows his conduct is likely to bring on an automatic state
Insulin is an external cause
Hardie (A)
Where basic intent crimes are concerned, automatism may fail where D realises the risk
Automatism allowed as D did not realise risk of valium changing behaviour as did not take it before
M’Naghten Rules
Burden of proving insanity on balance of probabilities is on D who must prove:
- D had a defect of reason; and
- This was caused by a disease of the mind; so that
- D either does not know the nature and quality of his act, or does but does not know it was wrong
Complete defense and D will be found ‘not guilty by reason of insanity’
Clarke
Absent-mindedness or confusion is not enough; D’s powers of reasoning must be impaired/defect of reason
Quick
The cause must be internal (disease of the mind)
Kemp
can be mental or physical as long as it affects D’s mind;
condition affecting blood supply to brain causing temporary loss of consciousness is a disease of the mind
Sullivan
epilepsy is a disease of the mind and can be ‘permanent, transient, or intermittent’
Hennessy
Diabetes - failing to take insulin is a disease of the mind as internal condition of diabetes affecting D
Burgess
Sleep disorder causing sleep walking is a disease of the mind
Windle, Johnson
If D knows the nature and quality of his act is legally wrong he cannot claim insanity even if he is suffering a mental illness
D is in a state of unconsciousness, or is conscious but does not understand his act because of the mental condition
Howe, Gotts
D is forced to commit a crime because of threats of death/serious injury;
Duress is not available for murder
Valderrama-Vega
D can be threatened with other things as long as there is also a threat of death or serious injury
Lynch, Singh, Quayle, Baker & Wilkins
Duress cannot be:
- threats to property
- threats to expose adultery
- threats of severe pain
- threats of psychological harm
Martin, Conway, Hasan
Threat can be at D or family/friends;
or a person for whom D would reasonably regard themselves as responsible
- wife
- passenger
- responsible
Cole
The threat must be for D to commit a specific crime
Graham
Did D honestly and reasonably believe life was in immediate danger?
Would a sober person of reasonable firmness (sharing D’s characteristics) have responded in the same way? - OBJECTIVE following Hasan
Martin
D must believe there was a threat of death or serious injury
Bowen, Hegarty
Low IQ;
Timidity/vulnerability
are not relevant characteristics
(age, gender, physical health or disability)
Sharp, Shepherd
If D brings the duress on himself it will not be allowed
- knew they were violent
- no knowledge of using violence
Gill
There must be no time to escape/raise the alarm
Hudson & Taylor
If raising the alarm would not be effective, duress is allowed
Hasan
The threat must be able to take place as soon as the defence is committed
Immediacy is the ‘cardinal feature’ of the defence
Willer
D is forced to commit a crime because of the situation he finds himself in
D allowed duress of circumstance when reckless driving as the situation he was in (surrounded by gang) forced him to commit the crime
Pommell
Allowed duress of circumstances as the situation he was in forced him to be in possession of a weapon
Martin (DoC)
Confirmed the Graham test for duress is the same as for duress of circumstance
Effect on defence of duress
Duress is an excuse. It’s existence does not necessarily result in a not guilty verdict; it will depend on the jury’s view
Specific intent crimes
MENS REA is intention
s18, theft, robbery, murder
Majewski
Voluntary intoxication can be used to show D had not formed the necessary mens rea for the crime.
The specific intent crime may be lowered to the lesser basic intent option
Sheehan & Moore
D’s did not have mens rea for murder due to intoxication so charge reduced
murder > manslaughter
AG for NI v Gallagher
If D has mens rea before the crime then cannot use subsequent intoxication to remove his guilt: drunken intent is still intent
Basic intent crimes
MENS REA only has to be recklessness
assault, battery, ABH, s20 UAM
Lipman
Voluntary intoxication is no defence where the crime is one of basic intent because D’s self-induced intoxication may be seen as recklessness
Kingston
D becomes intoxicated through no fault of their own
Even though D was spiked still had necessary mens rea for crime - intoxication simply took away resistance to committing crime
Hardie (IV)
Involuntary intoxication will be a full defence as long as D did not already have the mens rea
D took prescription drug making him react differently than expected, but had not been reckless in taking it so defence was allowed
