General Defences

Question 1

What is the legal test for the defence of insanity?

Answer 1

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

Question 2

What is the leading case on insanity?

Answer 2

M’Naghten

Question 3

Where multiple defences are raised, one of which is insanity, the insanity defence should take precedence. True or false?

Answer 3

True - confirmed in Oye

Question 4

When the defence of insanity is raised, the burden of proof is on…?

Answer 4

The defence - to prove on the balance of probabilities, that they were legally insane at the time of the offence

Question 5

What are the options for case disposal, following a special verdict by reason of insanity?

Answer 5

1. A hospital order - only option for murder cases (s.5(3) of the Criminal Procedure Act 1981)
2. A supervision order
3. An order for absolute discharge

Question 6

What is the definition of duress by threats?

Answer 6

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.

Question 7

In what offences is the defence of duress by threats not available to the defendant?

Answer 7

Murder, attempted murder, certain treason offences, and certain circumstances of prior fault

Question 8

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?

Answer 8

Known as “exclusion on the basis of prior fault”

Hasan [2005] UKHL 22

Question 9

Safi [2003] EWCA Crim 1809 provides what principle in regards to the defence of duress by threats?

Answer 9

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

Question 10

What is the definition of duress of (or by) circumstances?

Answer 10

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.

Question 11

Which case gave rise to the defence of duress of circumstances?

Answer 11

Willer (1986) 83 CR App R 225

Question 12

What is duress of (or by) circumstances not a defence to?

Answer 12

Murder, attempted murder and certain treason offences

Question 13

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.

Answer 13

True

Question 14

What is self-defence?

Answer 14

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.

Question 15

What is self-defence also known as?

Answer 15

“Public and private defence”

Question 16

D can still rely on self-defence, even if retreat was possible. True or false?

Answer 16

True

S.76(6A) of the Criminal Justice and Immigration Act 2008

Question 17

What is the difference between what is considered “reasonable force” for the purposes of self-defence in householder cases, compared to non-householder cases?

Answer 17

Householder cases = D’s force is reasonable if not grossly disproportionate

All other cases = D’s force is reasonable if it was not disproportionate

Question 18

When relying on self-defence, D can rely on an in honest but unreasonable mistake. True or false?

Answer 18

True

Question 19

What is the exception to the principle that, when relying on self-defence, D can rely on an honest but unreasonable mistake?

Answer 19

If an unreasonable mistake was due to voluntary intoxication, D will not be allowed to rely upon it for the purposes of self-defence

Question 20

What is the definition of the defence of necessity?

Answer 20

Where D has committed an offence by necessity, as a last resort, but no other defence is available

Question 21

Necessity is, in general, no defence to murder. What case clarified this principle?

In what case has there been a possible exception?

Answer 21

Dudley v Stephens (1884) 14 QBD 273

Re A (Children) [2000] 4 All ER 961

Question 22

What case clarified the requirements of necessity?

Answer 22

Re A (Children) [2000] 4 All ER 961

Question 23

What are the broad requirements for the defence of necessity, per Brook LJ in Re A (Children)?

Answer 23

1. That the act is needed to avoid inevitable and irreparable evil;
2. No more should be done than is reasonably necessary for the purpose to be achieved;
3. The evil inflicted must not be disproportionate to the evil avoided.

Question 24

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?

Answer 24

Self-defence