#Exam 1 (2)- general defences Flashcards
What are the general defences
Self defence Duress by threats Duress of circumstances Necessity Consent
What is self defence
Using force to defend oneself or to defend another
What must the degree of force be
The person acting in that way may not have been able to measure correctly the amount of force used, however, they most have honestly and instinctively thought the amount of force was correct
Which act sets out a definition of reasonable force
The criminal justice and immigration act 2008
What does R v Hussain show
Can’t use self defence if original danger is over
What do householder cases show
Give wider protection to those who are for example burgled and use force against an intruder
What does section 76 of the crime and courts act 2013 state about house holder cases
Only regarded unreasonable if “grossly disproportionate”
Must be in house or dwelling
D must be trespasser and d must believe V to be trespasser
What does Collins v Secretary of State for justice show
Courts have discretion to look and house holder cases individually
What did R v Gladstone and Williams show
That someone should be judged on what they genuinely believed was happening even if it was a mistake
Drunken mistakes aren’t covered because
It is unfair to allow someone to use self defence if their mistaken belief is caused by drink and drugs
Evaluation of self defence what are the main points
Is force necessary- r v bird
Does not protect victims from violence against them for mistakes
Is it necessary to wait for a preemptive strike
Hard to see whether force was excessive
Can’t use mental illness
What is duress
When you are forced to commit a crime
What does R v Howe show
Duress can’t be used as excuse for murder
What does R v Wilson show
Even young impressionable people can’t use duress as a defence for murder
Is duress available for attempted murder+case
No it cant be used - R v gotts
Does the threat have to be aimed at the person
No it can be friends or immediate family ( it has been questioned whether a stranger could even work )
What does r v valderrama vega show
Cumulative threats are enough for duress
What tests do we use for duress
Subjective-good reason to fear death or serious injury
Objective-would a sober person who was the same act similarly
What does R v Martin show
Mental illness which may affect whether something is considered a threat can be taken into account in the subjective test
What is taken into account under the objective test
Age Pregnancy Serious physical disability Recognised mental illness Gender
When can’t duress be used
When there is a “safe avenue of escape”
What does R v Hudson and Taylor
That even sometimes being in police protection the defendant still believes they may come to harm
What does duress need to be
Either be immediate or imminent in the sense that it is hanging over them ( r v Abdul- Hussain)
What must the threat be
It must be a threat to commit a specific offence
What happened in R v Cole
Man threatened to repay back money he owed, he robs banks- could not use as not forced to commit a crime
What is self induced duress
When d puts them self In a situation where they would likely be put under duress
Eg joining a criminal gang
What cases show examples of self induced duress
R v hasan- associated with criminals
R v sharp- gang where he was made to do robberies
R v shepherd- allowed appeal because the gang wasn’t violent to begin with
What is duress by circumstances
You are under duress from circumstances you are in not from threats
What happened in R v willer
Mans car surrounded by youths, drives on pavement to get away so gets charged with reckless driving
How are r v Conway and willer similar
Both drived recklessly to escape a danger
What happened in r v Martin
Wife acts hysterically and said she would kill herself if her husband didn’t drive her son to work- duress allowed
What happened in r v pommell / why is it important
Showed that duress could be used for offences which aren’t driving - man with machine gun was going to hand it to the police
Evaluation of duress of threats and duress of circumstances
Unavailable for murder
No allowances for low iq
Police protection
Proposals for reform
what is necessity
that a crime should be committed in order to prevent a greater evil
what does R v Dudley and Stephens show
that Necessity is seen as duress of circumstances in criminal- ie not used for the crime of murder
which two cases show necessity use in civil cases
Re F- sterilise the girl who was extremely mentally ill
Re A- conjoined twins allowed to be separated even though one would die
what was showed in R v Shayler
disclosing secrets under the official secrets act is not necessity
evaluation of necessity
necessity needs to be changed to allow emergency service drivers a defence for driving offences
Re A shows that evil need not be directed at the people involved
difference to duress of circumstances as murder was allowed in Re A.
what crime is consent not allowed for
murder
which case shows that there can’t be battery if force is lawful
R V Donovan- man cained girl for sexual gratification however she consented
what case shows consent can be used for manslaughter
R v slingsby- man anally fisting women causes small cuts and she dies of infection - not unlawful act as battery was consented too
what must consent be
consent must be real consent
what happened in R v Olugboja
woman is raped, and her friend is raped by another man, the men swap and the V ‘ submits’ . d tries to argue consent jury decided it was not true consent
what happened in R v dica
ordeered a retrial to look at the consent of HIV infection
what happened in R v Golding
D was shown to recklessly give someone the herpes virus. shows you must tell people about any STIs you have
what does R v Barnes show
when taking part in sport you consent to the injuries
what does R V Brown show
the men with fishooks case
covicted of ABH and GBH upheld even when there consent as it protects society from violent behaviour
why was R V Brown criticised
because in R V Wilson the couple needed medical attention for the branding yet courts held it should not interefere with a couples consented behaviour
why is R v Jones criticised
Allows for mistaken belief in consent even though the young boy ended up with a broken arm and ruptured spleen- unfair on V.
how was R v Aitken similar to Jones
RAF officers set someone on fire as a ritual, goes wrong and man is covered on 35% burns
what are the main reasons for the need of consent
sport and medical procedures
evaluate the law on consent
brown and wilson- contradict- unfair- homosexuals
emmett may suggest courts also impose on heterosexual couples
horseplay accepted even when serious injury taken into account
consent and euthanasia
R (pretty) v DPP 2001
courts do not allow assissted suicide- you must kill yourself
R (Nicklinson) v MOJ 2014
courts would not allow right to die so man starved himself
