Defences involving threat

Question 1

What are the three requirements for self-defence set out in HMA v Doherty 1954 JC 1? (COMPLETE DEFENCE).

Answer 1

1. Imminent danger to life or limb.
   
   • Can be pled where accused acted to protect third party (HMA v Carson 1964 SLT 21).
   • Accused may make a reasonable mistake about the existence of an imminent attack (Owens v HMA 1946 JC 119).
2. Must be no reasonable opportunity to escape - strong retreat rule.
   - Any opportunity must not be one which puts you at risk (McBrearty v HMA 1999 SLT 1333).
3. Force used must be proportionate to attack.
   - Moore v MacDougall 1989 SCCR 659.
   - Lethal force is only permissible against a threat of death or great bodily harm (McCluskey v HMA 1959 JC 39).
   - Defence is not automatically ruled out if the accused is armed or started the fight (Boyle v HMA 1993 SLT 577).

Question 2

What does Drury v HMA 2001 SLT 1013 set out about provocation?

Answer 2

Negates the mens rea.

Question 3

What are the requirements for provocation set out in Copolo v HMA 2017 SCCR 45? (PARTIAL DEFENCE).

Answer 3

1. A recognised provocation (physical violence or sexual infidelity).
2. A loss of self control resulting from this provocation.
3. An immediate retaliation to the provocation.
   - Means that cumulative provocation is not recognised (Thomson v HMA 1986 SLT 281)
4. Which results in either: (a) a response which is not grossly disproportionate to the provoking act, in the case of physical violence or (b) a reaction expected of the ordinary person, in the case of sexual infidelity.

Question 4

What are the requirements of necessity?

Answer 4

1. An imminent danger of death/great bodily harm
   - Where not present (Moss v Howdle 1997 JC 123).
2. No reasonable alternative course of action available (Moss v Howdle, D v Donnelly 2009 SLT 476).
3. Conduct must have had a reasonable prospect of removing the danger (Lord Advocate’s Reference (No.1 of 2000) 2001 JC 143).

Question 5

What are the requirements for coercion as set out by Thomson v HMA 1983 JC 69?

Answer 5

1. Immediate threat of death/great bodily harm.
2. “Ordinary person” condition (Cochrane c HMA 2001 SCCR 655).
3. Accused must not have risked being subject to coercion (R v Hasan [2005] UKHL 22) - this is an E&W case!!
   - Threat does not have to be to her personally (HMA v Docherty (1976) SCCR Supp 146).
   - Threat must have been able to be carried out immediately (Trotter v HMA 2001 SLT 296).