General Defences Flashcards
What is the legal test for the defence of insanity?
1) D was suffering from a “disease of the mind”
2) This must have cause a “defect in reason” and
3) This must have meant that D either did not know the nature and qualify off their act, or D did not know it was wrong
What is the leading case on insanity?
M’Naghten
Where multiple defences are raised, one of which is insanity, the insanity defence should take precedence. True or false?
True - confirmed in Oye
When the defence of insanity is raised, the burden of proof is on…?
The defence - to prove on the balance of probabilities, that they were legally insane at the time of the offence
What are the options for case disposal, following a special verdict by reason of insanity?
- A hospital order - only option for murder cases (s.5(3) of the Criminal Procedure Act 1981)
- A supervision order
- An order for absolute discharge
What is the definition of duress by threats?
D reasonably believed that they or another (for whom they where responsible) were threatened, by another, with death or serious injury, unless D committed the offence; and
Committing a crime, as D did, must be something that a reasonable person would have done in such circumstances.
In what offences is the defence of duress by threats not available to the defendant?
Murder, attempted murder, certain treason offences, and certain circumstances of prior fault
D cannot rely on the defence of duress by threat if they voluntarily associate with criminals.
What is this known as?
What is the authority?
Known as “exclusion on the basis of prior fault”
Hasan [2005] UKHL 22
Safi [2003] EWCA Crim 1809 provides what principle in regards to the defence of duress by threats?
That duress can be based on a mistaken belief
- but the mistake has to have been a reasonable one to have been made in the circumstances
- there is no need for an objective threat to have existed, as long as D believed, reasonably, that one did
What is the definition of duress of (or by) circumstances?
D reasonably believed that the circumstances posed a risk of death or serious injury to D or another unless D committed the offence (like duress by threats); and
Committing a crime, as D did, must be something that a reasonable person would have done in such circumstances (/in that D’s will was over borne despite reasonable steadfastness.
Which case gave rise to the defence of duress of circumstances?
Willer (1986) 83 CR App R 225
What is duress of (or by) circumstances not a defence to?
Murder, attempted murder and certain treason offences
The law is not yet categorically certain on whether, if D voluntarily associates with criminals, they can still rely on duress of (or by) circumstances.
True
What is self-defence?
Where D subjectively believed that force was immediately required in order to protect themselves, others, or property, and that the amount of force used was reasonable on the facts as D believed them to be.
What is self-defence also known as?
“Public and private defence”
D can still rely on self-defence, even if retreat was possible. True or false?
True
S.76(6A) of the Criminal Justice and Immigration Act 2008
What is the difference between what is considered “reasonable force” for the purposes of self-defence in householder cases, compared to non-householder cases?
Householder cases = D’s force is reasonable if not grossly disproportionate
All other cases = D’s force is reasonable if it was not disproportionate
When relying on self-defence, D can rely on an in honest but unreasonable mistake. True or false?
True
What is the exception to the principle that, when relying on self-defence, D can rely on an honest but unreasonable mistake?
If an unreasonable mistake was due to voluntary intoxication, D will not be allowed to rely upon it for the purposes of self-defence
What is the definition of the defence of necessity?
Where D has committed an offence by necessity, as a last resort, but no other defence is available
Necessity is, in general, no defence to murder. What case clarified this principle?
In what case has there been a possible exception?
Dudley v Stephens (1884) 14 QBD 273
Re A (Children) [2000] 4 All ER 961
What case clarified the requirements of necessity?
Re A (Children) [2000] 4 All ER 961
What are the broad requirements for the defence of necessity, per Brook LJ in Re A (Children)?
- That the act is needed to avoid inevitable and irreparable evil;
- No more should be done than is reasonably necessary for the purpose to be achieved;
- The evil inflicted must not be disproportionate to the evil avoided.
Stephen has pushed Bob over in the street and restrained him. Stephen claims he did so because he was protecting his grandmother, whom he asserts Bob was trying to rob.
Which general defence best corresponds to these facts?
Self-defence
