General Defences Flashcards
What are the 2 groups of defences?
Justificatory and excusatory
Who bears the evidential burden in self defence? What about the burden of proof?
The defence;
Prosecution must prove the defendant did not in fact act in self defence- Lobell [1957]
what is the test of self defence?- case law
Palmer v R [1971]- NECESSITY AND PROPORTIONATE
What are the 2 stages of the Palmer Test?
- did D honesty believe that the use of force was necessary?
did D use a reasonable amount of force in the circumstances as he believed them to be?
Which case brought a ‘new test’ for self defence?
Oatridge [1992]
What did Oatridge add to the self defence test?
aims to filter out cases where D acted out of revenge or anger
pre-emptive strikes still allow for self-defence
Beckford v R [1988]
danger must be imminent
Devlin v Armstrong [1971]
no need to retreat before using force
Bird [1985]; McInnes [1971]
What does s.76 (4) CJIA 2008 provide?
D’s belief as to the circumstances must be honest; need not be reasonable- confirmed in Willams (Gladstone) [1987]
if mistaken belief was due to voluntary intoxication, self-defence will not be available
O’Grady [1987]- murder to manslaughter conviction; Hatton [2005]
‘attributable to intoxication’ may mean at the time of the offence and shortly prior- in those cases self defence is not available as per s.76 (5)
R v Taj (Simon) [2018]- drug or alcohol induced psychotic disorder
excessive force does not constitute self-defence
Clegg [1995]
the defendant’s psychiatric condition is not relevant to whether or not he used reasonable force in self-defence
Martin (Anthony) [2001]
what is the meaning of s.76 (5a) CJIA?
relates to householders; doesn’t give them a card blanche- balance with article 2 of ECHR; asks the question of was the degree of force grossly disproportionate?
for self- defence in householder cases, the degree of force used may be reasonable even when it was disproportionate (but not grossly disproportionate)
R v Ray [2017] upheld the view in Collins
use of reasonable force in the defence of another person; case- D shot father whilst protecting mother
Rose [1884]
conflict between domestic law (mistaken but honest belief) and ECHR (good reasons for mistaken belief)
Leverick [2002] vs Smith [2002]
R v Hasan [2005] outlined the principles of duress: what are they?
- no evasive action available to D
There needs to be a nexus between the threat and the offence
-threat or imminent threat must be made to D or his immediate family
‘a person of D’s characteristics’ is part of the objective duress by threats test. What characteristics does that include?
serious physical disability, age, pregnancy
Not mental conditions- R v Bowen [1996]
defence of duress by circumstances is generally easier to prove than duress by threats. Give case law of successfully plead.
R v Cairns [1999]; R v Willer [1986]- driving offences
Lord Denning’s speech on why necessity should not be expanded as a defence
Southwark LBC v Williams [1971]- a door no man could shut
necessity may be a defence to murder only in medical cases
Re A (Cojoined Twins) [2000]
what are the 3 ways in which the term of necessity may be used?
- the lesser of 2 evils
-can arise by threats- Pipe v DPP [2012]- drove over speed limit, because his partner’s son had to be taken to the hospital
-can arise by circumstances- police officer directing people to break traffic rules because of an accident on the road
what is the test for necessity?- 2 stages
- was D forced to act as he did because there was a reasonable fear of death or personal injury?
- would a sober person of reasonable firmness sharing D’s characteristics have responded to D’s belief in the same way?
duress as a defence to murder should be left to parliament
R v Gotts [1992] Lord Keith
