general defences Flashcards
what is duress
foced to commit crime due to fear
R v Gotts-defence cant be used for offences of murder or manslaughter, D 16 and father threatened him with violence unless stabbed mother attacked her didnt die still convicted
r v hasan
created 6 elememts
threat caysed d to fear death or serious injury
threat direct against themselves or member of their immediate family
jury consider reasonableness d perception and conduct
criminal conduct direct result of threat
must have been no possibility of evasive action
d voluntarily laid themselves open the defence cant be used
duress by threat
must be threat serious injury or death
A-G v Whelan- threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance
threat not the only factor
R v Valderama Vega- d illegally imported drugs result of mix of threats from mafia and threats disclose sexuality both factors considered
R v Graham- d must use reasonably believe good cause fear the threat, sober [erson reasonable firmness acted in the same way(not used anymroe)
r v abdul hussain- d fled from iraq to sudan executed for religious beliefs fear sent back iraq hijacked plane, threat not immediate, allowed as there was immediate peril of death or serious injury
duress by circumstance
circumstances d is in those where d feared death or serious violence and needed commit crime to avoid this
R v Willer- D driving down lane car surrounded by gang threatened himself and passenger, drove onto path avoid situation, reckless driving conviction quashed
reasonably perceived a threat of death or serious violence
what is intoxication
d committed crime but was intoxicated at time
voluntary intoxication
chooses to become intoxicated
R v Majewski- if voluntary intoxication by alcohol or drugs and d as result lacks mens rea they cant be convicted of intent offence, can be guilty basic intent offences, D voluntarily intoxicated attacked police officer, charged s47 OAPA upheld, if voluntarily intoxicated reckless in doing so satisfies mens rea
R v Lipman- D and girlfriend LSD hallucinating, centre of the earth and snakes attacking him, next day found girlfriend dead, pushed bedsheet down her throat, voluntary intoxication sufficient for manslaughter where only recklessness needed
involuntary intoxication
d does not choose to be intoxicated
courts decide whether relevant MR
full defence
R v Kingston- d homosexual pedo, lured to flat by another man wanted to be able to blackmail him, man gave d coffee had been drugged, d sexually asbused young boy, d able to form mens rea so intoxication was irrelevant
basic intention
crimes which have mens rea of either intention or recklessness
d wul have been reckless when they voluntarily became intoxicated mens rea satisfied
if d become voluntarily intoxicated with non dangerous drug and reacts in different way to anticipated they havent been reckless
R v Hardie- D took valium, couldnt remember setting wardrobe alight, D not reckless as not the reaction which would be expected
specific intention
crimes where mens rea is intention only
if d intoxicated charged with specific intent offence found not guilty if nable to form mr, if lesser offence basic intent they will be charged with that offence instead, theft doesnt have lesser offence so wouldnt be found guilty but murder does so would be convicted manslaughter
what is self defence
d use force to negate ar of offence beng committed if doing so to protect themselves another person or property
common law self defence
using reasonable force against violent assaults
statutory self defence
s3 Criminal law act 1967- use of force to prevent the commission of any offence actual crime needs to be committed this can include offences against property may not be violent
necessary
subjective test-did d have genuine belief force necessary, even if mistaken still able to use defence
r v williams- v saw mugging and restrained youth had committed mugging, d saw this came to help youth believing he was being attaacked, mistake but genuinely believed force necessary
r v o’grady- defence not available if d made drunken mistake
believ about to be attacked and strike first this is still allowed v beckford
r v bird preemptive strike
s76 criminal justice and immigration act 2008 court consider whether there was opportunity to retreat
reasonable
objective test- did he use reasonable force proportionate to threat
r v clegg- force proportionate at first but may develop into disproprionate if d does not stop after danger removed or passed, if force objective excessive then it will fail
jury take into account size strength and skill of parties
s76 criminal justice and immigration act 2008- did d act as he thought was instinctively and honestly necessary
householder cases- force does not have to be proprtionate, householder must be protecting themselves or another not just property
criminal justice and immgration act- force used shouldnt be grossly disproportionate
r v martin- d shot intruders in house, personality disorder should have veen taken into accountm, court stated if d perceves the degree of danger as being far greater then would be erceived by resaonable person the mistake should be ignored
insanity
m’naughten rules- defect of reason, disease of mind, did not know nature and quality of act
based on internal factor
