EXAM NOTES: Defences Flashcards
Who can you be defending for a self-defence claim
1) R v Hussey yourself or your property
2) R v Gladstone- Williams - another person
What must be shown for self-defence to work?
- a subjective trigger for use of force
- an objectively reasonable response to that trigger
what must D be thinking for the trigger to work in self-defence
- Must subjectively believe that use of force was necessary to repel the threat
o Even if that belief is mistaken R v Gladstone-Williams
how does intoxication relate to the trigger in SD
o if mistaken belief is due to voluntary intoxication then cannot rely on self-defence
But if a reasonable and sober man would have come to the same conclusion then an intoxicated D can still rely on the defence O’Connor
What is the rule on arming yourself for SD
- Arming yourself does not undermine your trigger AG Ref (no 2 1983)
what is the rule about making sober mistakes in SD?
- mistaken belief does not negate the trigger R v Gladstone-Williams
- mistaken belief that the other party has a weapon does not negate the trigger
In SD how should D have reacted in the face of the threat?
- no duty to retreat R v Bird
- SD not automatically precluded where D was the initial aggressor R v Rashford (“oh how rash”)
How is D’s response to the trigger judged in SD?
- Must be in response to a physical threat R v Bullerton
- Must be an objectively reasonable degree of force
- But this is assessed on the facts as D believed them to be be Owino + s76(6) CJIA 2008
- Can take into account acting in the heat of the moment Palmer s76(7) CJIA 2008
What is the CJIA?
Criminal Justice and Immigration Act 2008
In what two ways can intoxication help a defendant
1) If D was unable to form the MR through intoxication
2) by influencing another defence or principle
What is the general law on whether D was too intoxicated to form the MR
- Woolmington – D must commit AR with MR
- R v Pordage – question is whether D actually did form the MR, not whether he was capable of it.
o If he did, intoxication will not help him - R v Kingston drunken intent is still intent
When could intoxication negate the MR
- Any involuntary intoxication
- Intoxication caused by voluntarily taking non-dangerous drugs
- Intoxication caused by voluntarily taking drugs in bona fide pursuance of medical treatment
- Where specific intent is required
• But for all of these, the court asks if D still formed the necessary MR anyway
how does intoxication relate to crimes of basic intent?
R v Majewski
- may amount to required recklessness so no defence
How does voluntary intoxication by dangerous drugs work?
- voluntary intoxication by dangerous drugs less likely to negate MR than by non-dangerous drugs R v Hardie
What is the rule about mistaken strength for voluntary intoxication
R v Allen - mistake as to strength while voluntarily intoxicating is still voluntary intoxication
What is the rule for involuntary intoxication?
- May be a defence to all crimes
- but R v Kingston not if the court feels you still had an intent - ‘drunken intent’ is still intent
What is the rule for intoxication by non-dangerous drugs?
R v Hardie
1) Was D reckless in taking the drugs?
2) if so, D could have the MR for a crime of basic intent
What is the rule for intoxication and SD
if D makes a drunken mistake as to the need to use self-defence he cannot rely on that defence. R v O’Connor
What is the rule for intoxication and duress?
- D must have a reasonable belief that he is under threat and the reasonable man is never drunk – cannot rely on an intoxicated mistake
What kind of harm can be consented to?
- AG’s Ref (No6 of 1980) can only consent to minor harm
- R v Brown – you cannot consent to more serious harm
what do people normally consent to?
everyday touching and contact Collins v Willcock
How must consent be qualified?
R v Dica – can only consent if you know the risks and the quality of the act (man had AIDS)
what are the key types of duress?
- Duress by threat
* Duress of circumstances
What is the key case for duress by threat?
R v Hasan
What are the stages of a duress defence?
- threat of death/serious injury
- made to D or someone D reasonably believed he was responsible for
- D’s perception of threat and his response should be assessed objectively
- D’s conduct must have been caused by the threat
- D could not have avoided acting
- D cannot have laid himself open to the threat
- unavailable for murder/attempted
what says that duress must be through a threat of death or serious injury?
R v Graham
How should D’s perception of the threat be assessed objectively (duress)
belief in the threat must be reasonable
1) reasonable cause for fear R v Graham
2) reasonable belief threat would be carried out R v Martin
How should D’s response be assessed objectively (duress)
decision to commit crime must be reasonable
1) proportional to threat R v Abbott
2) consider characteristics of D - R v Bowen
what if there are multiple threats? (duress)
doesn’t matter as long as there is a threat of serious violence
how has a D laid himself open to duress?
R v Hasan
- should D have reasonably foreseen the risk
- of being subjected to any compulsion
How does duress of circumstance work?
- threats of violence
- led to D feeling compelled to commit a crime
- to escape
demonstrate duress of circumstance
- R v Willer D drove through pedestrianised area to escape youths trying to kill him
Give the test for duress of circumstances
R v Martin
1) Same as duress by threat but
2) threat need not be accompanied by command to commit a crime
3) crime must be only way to avoid threat
