Defences

Question 1

Self defence

Answer 1

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

Question 2

Private defence

Answer 2

Defending himself or his property against an actual or imminent attack or defending another against such an attack

Question 3

Public defence

Answer 3

Prevent the commission of an offence or effect a lawful arrest

Question 4

Self defence act

Answer 4

S.76 criminal justice and immigration act 2008

Question 5

Necessity of force

Answer 5

Subjective test- must be necessary in the circumstances which exist or what d genuinely believed existed

Question 6

S.76 (3) CJIA act 2008

Answer 6

Ds claim will be judged on the facts as he genuinely perceives them to be

Question 7

Mistaken beliefs

Gladstone Williams

Answer 7

D can be mistaken provided he genuinely believes there to be a necessity

Question 8

Intoxication

S.76 (5) CJIA

Answer 8

If d is voluntarily intoxicated he cannot rely on his mistaken belief

O’grady

Question 9

If the attack was imminent

Answer 9

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

Question 10

Reasonableness of force

Answer 10

S.76 (6) CJIA 
S.76 (7) CJIA 
palmer
Martin 
Clegg

Question 11

S.76 (6)CJIA

Answer 11

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

Question 12

S.76 (7) CJIA

Answer 12

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

Question 13

Palmer

Answer 13

Cannot weigh to a nicety the exact measure of his necessary defensive action

Question 14

Martin

Answer 14

If force used is excessive it will be unreasonable and the defence will fail

Question 15

Clegg

Answer 15

Threat must still be present for defence to succeed

Question 16

Burden of proof

Answer 16

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

Question 17

Voluntary

Answer 17

D takes drink/drugs of his own free will

Question 18

Involuntary

Answer 18

D does not know he is taking alcohol or intoxicating drugs

Question 19

Involuntary intoxication

Answer 19

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

Question 20

Kingston

Answer 20

Intoxicated intent is still intent

Question 21

Allen

Answer 21

Not realising the strength of alcohol or drugs will not be classed as involuntary intoxication

Question 22

Basic intent offences

Answer 22

Include subjective recklessness in the mens rea

Question 23

Specific intent offences

Answer 23

Do not include subjective recklessness in the mens rea

Question 24

Voluntary intoxication basic intent

Answer 24

Voluntary intoxication is not a defence to crimes of basic intent

Majewski- voluntary intoxication is itself is reckless

Question 25

Voluntary intoxication specific

Answer 25

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

Question 26

Voluntary cases

Answer 26

Lipman Attorney general for n ireland v gallagher

Question 27

Lipman

Answer 27

Voluntary intoxication can be a defence to murder but not manslaughter as manslaughter is basic intent

Question 28

Attorney

Answer 28

If MR is formed before the offence no defence of intoxication

Question 29

Insanity

Answer 29

Defined in m’naughten where d has a defect of reason caused by a disease of the mind.

Question 30

1. Defect of reason

Answer 30

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

Question 31

2. Caused by a disease of the mind

Answer 31

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

Question 32

3. D does not know the nature and quality of his act

Answer 32

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

Question 33

Automatism

Answer 33

Must show that d’s act was in voluntary and caused by an external factor and was not self induced

Question 34

1. An involuntary act

Answer 34

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

Question 35

2. Caused by an external factor

Answer 35

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

Question 36

3. Automatism was not self induced

Answer 36

Bailey- self induced automat is not acceptable