EXAM NOTES: Defences

Question 1

Who can you be defending for a self-defence claim

Answer 1

1) R v Hussey yourself or your property

2) R v Gladstone- Williams - another person

Question 2

What must be shown for self-defence to work?

Answer 2

• a subjective trigger for use of force

- an objectively reasonable response to that trigger

Question 3

what must D be thinking for the trigger to work in self-defence

Answer 3

• Must subjectively believe that use of force was necessary to repel the threat
  o Even if that belief is mistaken R v Gladstone-Williams

Question 4

how does intoxication relate to the trigger in SD

Answer 4

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

Question 5

What is the rule on arming yourself for SD

Answer 5

• Arming yourself does not undermine your trigger AG Ref (no 2 1983)

Question 6

what is the rule about making sober mistakes in SD?

Answer 6

• 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

Question 7

In SD how should D have reacted in the face of the threat?

Answer 7

• no duty to retreat R v Bird

- SD not automatically precluded where D was the initial aggressor R v Rashford (“oh how rash”)

Question 8

How is D’s response to the trigger judged in SD?

Answer 8

• 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

Question 9

What is the CJIA?

Answer 9

Criminal Justice and Immigration Act 2008

Question 10

In what two ways can intoxication help a defendant

Answer 10

1) If D was unable to form the MR through intoxication

2) by influencing another defence or principle

Question 11

What is the general law on whether D was too intoxicated to form the MR

Answer 11

• 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

Question 12

When could intoxication negate the MR

Answer 12

1. Any involuntary intoxication
2. Intoxication caused by voluntarily taking non-dangerous drugs
3. Intoxication caused by voluntarily taking drugs in bona fide pursuance of medical treatment
4. Where specific intent is required
   • But for all of these, the court asks if D still formed the necessary MR anyway

Question 13

how does intoxication relate to crimes of basic intent?

Answer 13

R v Majewski

- may amount to required recklessness so no defence

Question 14

How does voluntary intoxication by dangerous drugs work?

Answer 14

• voluntary intoxication by dangerous drugs less likely to negate MR than by non-dangerous drugs R v Hardie

Question 15

What is the rule about mistaken strength for voluntary intoxication

Answer 15

R v Allen - mistake as to strength while voluntarily intoxicating is still voluntary intoxication

Question 16

What is the rule for involuntary intoxication?

Answer 16

• 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

Question 17

What is the rule for intoxication by non-dangerous drugs?

Answer 17

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

Question 18

What is the rule for intoxication and SD

Answer 18

if D makes a drunken mistake as to the need to use self-defence he cannot rely on that defence. R v O’Connor

Question 19

What is the rule for intoxication and duress?

Answer 19

• D must have a reasonable belief that he is under threat and the reasonable man is never drunk – cannot rely on an intoxicated mistake

Question 20

What kind of harm can be consented to?

Answer 20

• AG’s Ref (No6 of 1980) can only consent to minor harm

- R v Brown – you cannot consent to more serious harm

Question 21

what do people normally consent to?

Answer 21

everyday touching and contact Collins v Willcock

Question 22

How must consent be qualified?

Answer 22

R v Dica – can only consent if you know the risks and the quality of the act (man had AIDS)

Question 23

what are the key types of duress?

Answer 23

• Duress by threat

* Duress of circumstances

Question 24

What is the key case for duress by threat?

Answer 24

R v Hasan

Question 25

What are the stages of a duress defence?

Answer 25

1. threat of death/serious injury
2. made to D or someone D reasonably believed he was responsible for
3. D’s perception of threat and his response should be assessed objectively
4. D’s conduct must have been caused by the threat
5. D could not have avoided acting
6. D cannot have laid himself open to the threat
7. unavailable for murder/attempted

Question 26

what says that duress must be through a threat of death or serious injury?

Answer 26

R v Graham

Question 27

How should D’s perception of the threat be assessed objectively (duress)

Answer 27

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

Question 28

How should D’s response be assessed objectively (duress)

Answer 28

decision to commit crime must be reasonable

1) proportional to threat R v Abbott
2) consider characteristics of D - R v Bowen

Question 29

what if there are multiple threats? (duress)

Answer 29

doesn’t matter as long as there is a threat of serious violence

Question 30

how has a D laid himself open to duress?

Answer 30

R v Hasan

• should D have reasonably foreseen the risk
• of being subjected to any compulsion

Question 31

How does duress of circumstance work?

Answer 31

• threats of violence
• led to D feeling compelled to commit a crime
• to escape

Question 32

demonstrate duress of circumstance

Answer 32

• R v Willer D drove through pedestrianised area to escape youths trying to kill him

Question 33

Give the test for duress of circumstances

Answer 33

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