Defences Flashcards
Self defence
A person can use force as is reasonable in the circumstances to defend himself or another or his property
All or nothing defence- either complete acquittal or convicted of full offence
Private defence
Defending himself or his property against an actual or imminent attack or defending another against such an attack
Public defence
Prevent the commission of an offence or effect a lawful arrest
Self defence act
S.76 criminal justice and immigration act 2008
Necessity of force
Subjective test- must be necessary in the circumstances which exist or what d genuinely believed existed
S.76 (3) CJIA act 2008
Ds claim will be judged on the facts as he genuinely perceives them to be
Mistaken beliefs
Gladstone Williams
D can be mistaken provided he genuinely believes there to be a necessity
Intoxication
S.76 (5) CJIA
If d is voluntarily intoxicated he cannot rely on his mistaken belief
O’grady
If the attack was imminent
Bird- does not have to wait for an attack to start but can get in the first blow
Hichens- violence can be aimed at an innocent third party
Reasonableness of force
S.76 (6) CJIA S.76 (7) CJIA palmer Martin Clegg
S.76 (6)CJIA
the degree of force used by d will not be considered as reasonable if it was disproportionate in the circumstances as d believed them to be
S.76 (7) CJIA
A person may not be able to weigh to a nicety the exact measure of any necessary action
And only done what be honestly and instinctively thought was necessary for a legitimate purpose
Palmer
Cannot weigh to a nicety the exact measure of his necessary defensive action
Martin
If force used is excessive it will be unreasonable and the defence will fail
Clegg
Threat must still be present for defence to succeed
Burden of proof
Prosecution to prove to the jury beyond all reasonable doubt that it was either not acting to defend himself/another/property/to prevent a crime/ force was excessive
Voluntary
D takes drink/drugs of his own free will
Involuntary
D does not know he is taking alcohol or intoxicating drugs
Involuntary intoxication
Has the effect of alcohol/drugs removed d’s intention and d was unable to form the mr of the offence, intoxication is a complete defence- acquittal
Kingston
Intoxicated intent is still intent
Allen
Not realising the strength of alcohol or drugs will not be classed as involuntary intoxication
Basic intent offences
Include subjective recklessness in the mens rea
Specific intent offences
Do not include subjective recklessness in the mens rea
Voluntary intoxication basic intent
Voluntary intoxication is not a defence to crimes of basic intent
Majewski- voluntary intoxication is itself is reckless
Voluntary intoxication specific
Voluntary intoxication can be raised as a defence to crimes of specific intent if intoxication removes ds MR
But still convicted of a corresponding lesser basic intent offence
Voluntary cases
Lipman
Attorney general for n ireland v gallagher
Lipman
Voluntary intoxication can be a defence to murder but not manslaughter as manslaughter is basic intent
Attorney
If MR is formed before the offence no defence of intoxication
Insanity
Defined in m’naughten where d has a defect of reason caused by a disease of the mind.
- Defect of reason
Inability to use powers of reason
Lipman- if d was intoxicated no defence
Clarke- being temporarily absent minded does not mean she was deprived of reason
- Caused by a disease of the mind
Sullivan- legal and medical definition of disease of the mind are very different
Kemp- disease of mind could be temporary
Bratty- any mental disorder that could lead to violence that was likely to re-occur is a disease of the mind
- D does not know the nature and quality of his act
Does one of the following apply
He did not know what he was doing
He did not appreciate the consequences of his act
He did not appreciate the circumstances in which he was acting
Or he doesn’t know what he was doing was legally wrong
Automatism
Must show that d’s act was in voluntary and caused by an external factor and was not self induced
- An involuntary act
Bratty- in voluntary means an act which is done by the muscles without any control by the mind such as spasm, reflex action, convulsion
Attorney generals reference no.2 of 1992- needs to be a total lack of awareness
- Caused by an external factor
R v t- exceptional stress
Diabetes- quick- failure To eat meant that the insulin caused his loss of control
Examples of external factors – blow to the head (concussion), sneezing, hypnotism, effect of drug, attack by swarm of bees
- Automatism was not self induced
Bailey- self induced automat is not acceptable
