General Defences

Question 1

What are the 2 groups of defences?

Answer 1

Justificatory and excusatory

Question 2

Who bears the evidential burden in self defence? What about the burden of proof?

Answer 2

The defence;
Prosecution must prove the defendant did not in fact act in self defence- Lobell [1957]

Question 3

what is the test of self defence?- case law

Answer 3

Palmer v R [1971]- NECESSITY AND PROPORTIONATE

Question 4

What are the 2 stages of the Palmer Test?

Answer 4

• 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?

Question 5

Which case brought a ‘new test’ for self defence?

Answer 5

Oatridge [1992]

Question 6

What did Oatridge add to the self defence test?

Answer 6

aims to filter out cases where D acted out of revenge or anger

Question 7

pre-emptive strikes still allow for self-defence

Answer 7

Beckford v R [1988]

Question 8

danger must be imminent

Answer 8

Devlin v Armstrong [1971]

Question 9

no need to retreat before using force

Answer 9

Bird [1985]; McInnes [1971]

Question 10

What does s.76 (4) CJIA 2008 provide?

Answer 10

D’s belief as to the circumstances must be honest; need not be reasonable- confirmed in Willams (Gladstone) [1987]

Question 11

if mistaken belief was due to voluntary intoxication, self-defence will not be available

Answer 11

O’Grady [1987]- murder to manslaughter conviction; Hatton [2005]

Question 12

‘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)

Answer 12

R v Taj (Simon) [2018]- drug or alcohol induced psychotic disorder

Question 13

excessive force does not constitute self-defence

Answer 13

Clegg [1995]

Question 14

the defendant’s psychiatric condition is not relevant to whether or not he used reasonable force in self-defence

Answer 14

Martin (Anthony) [2001]

Question 15

what is the meaning of s.76 (5a) CJIA?

Answer 15

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?

Question 16

for self- defence in householder cases, the degree of force used may be reasonable even when it was disproportionate (but not grossly disproportionate)

Answer 16

R v Ray [2017] upheld the view in Collins

Question 17

use of reasonable force in the defence of another person; case- D shot father whilst protecting mother

Answer 17

Rose [1884]

Question 18

conflict between domestic law (mistaken but honest belief) and ECHR (good reasons for mistaken belief)

Answer 18

Leverick [2002] vs Smith [2002]

Question 19

R v Hasan [2005] outlined the principles of duress: what are they?

Answer 19

• 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

Question 20

‘a person of D’s characteristics’ is part of the objective duress by threats test. What characteristics does that include?

Answer 20

serious physical disability, age, pregnancy
Not mental conditions- R v Bowen [1996]

Question 21

defence of duress by circumstances is generally easier to prove than duress by threats. Give case law of successfully plead.

Answer 21

R v Cairns [1999]; R v Willer [1986]- driving offences

Question 22

Lord Denning’s speech on why necessity should not be expanded as a defence

Answer 22

Southwark LBC v Williams [1971]- a door no man could shut

Question 23

necessity may be a defence to murder only in medical cases

Answer 23

Re A (Cojoined Twins) [2000]

Question 24

what are the 3 ways in which the term of necessity may be used?

Answer 24

• 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

Question 25

what is the test for necessity?- 2 stages

Answer 25

1. was D forced to act as he did because there was a reasonable fear of death or personal injury?
2. would a sober person of reasonable firmness sharing D’s characteristics have responded to D’s belief in the same way?

Question 26

duress as a defence to murder should be left to parliament

Answer 26

R v Gotts [1992] Lord Keith