Defences 2 Flashcards
In what acts are public and private defences covered?
Criminal Law Act 1967
Criminal Justice and Immigration Act 2008
Crime and Courts Act 2013
What does the CCA 2013 add to self-def?
If D genuinely holds a belief then D can rely on it if REASONABLE and PROPORTIONATE force used in self-def. Even applies if MISTAKEN if mistake was reasonable.
No permitted if D voluntarily-intoxicated
What did CJIA 2008 do in the definition of how a householder could respond to a burgler?
Question now is whether the degree of force is GROSSLY DISPROPORTIONATE
Is there a duty of retreat in self-defence?
No. Proved in FIELD 1972 where D was aware that V was coming to attack him
Can self-def be used if D provoked the attack?
Yes reasonable force can still be used
Can a pre-emptive strike be made?
Yes, in BECKFORD 1988 “A man does not have to wait for his assailant to strike the first blow or fire the first shot”
In what manner is it decided whether D’s use of force is reasonable?
Objectively, not from D’s point of view
What occurred in CLEGG 1995?
- Soldier on checkpoint in W Belfast
- Fired 4 shots at car that approached checkpoint
- Final shot after car had passed. Lost right to self-def as he and collegues no longer in danger
In what case did D shoot a burglar and was convicted for murder?
MARTIN 2002.
Had suffered number of break- ins and shot indiscriminately at noise downstairs
- May now have been assisted by CJIA 2013 changes
In the defence of loss of self-control, can D initiate the act which consitutes the qualifying trigger?
No
What occured in AHLUWALIA 1992?
- D suffered long period of domestic abuse.
- Twice attempted suicide
- However remained with husband for over 10 years
- Came to a head when husband announced that he was leaving
- D set fire to him while he slept
- Convicted and lost appeal - described as a “COLD-BLOODED KILLING” by CoA
Does the break up of a relationship constitute circumstances of an extremely grave character?
No, mention by judge in CLINTON
Why may a defence of self-def be preferred to a defence of loss of self-control?
Relying on loss of self-control may weaken the chance to use self-def
What are the two elements of a loss of self-control defence?
- SUBJECTIVE element - the actual loss and qualifying triggers
- OBJECTIVE element - that the loss of self-control was not out of the ordinary for D
What are the 2 forms of duress?
- Duress by THREATS
2. Duress of CIRCUMSTANCES
What did QUAYLE (2005) state with regard to severe pain in duress?
Severe pain does not amount to severe injury
Can duress be used as a defence for murder or attempted murder?
No
What was the effect of ABDUL-HUSSAIN 1999 on duress?
- D had hijacked plane from Sudan to Jordan and diverted to UK.
- Had been tortured in Iraq and sentenced to death there.
- CofA quashed conviction for hijacking ruling that IMMINENCE rather than IMMEDIACY OF THREAT was the appropriate measure
What is necessity in criminal law?
Non-compliance with the law that is excused by an emergency or justified by some greater good
Can necessity allow D to choose the lesser of two evils?
NO, this would see collective rights overriding individual rights and subvert the law as individuals could ignore their legal duty is pursuit of some supposedly greater good
What case is the authority for limited proposition that necessity is no defence for murder?
(not in all cases, but not of an innocent)
DUDLEY AND STEPHENS 1884:
- Shipwrecked men decide to kill cabin boy on their lifeboat to survive. Decided to not let him die naturally so possibility of drinking his blood would exist.
- Attempted defence of necessity but convicted of murder.
In what case were conjoined twins separated but one of condemned to death as they only had a single heart?
Re A 2001:
- Twins would have both died were it not for the intentional killing of the weaker twin.
- This was the unavoidable side effect of an otherwise legal act
