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A-level Law 👩🏿‍⚖️ > General Defences 👮‍♀️⛓ > Flashcards

General Defences 👮‍♀️⛓ Flashcards

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1
Q

Kind of defence of self defence/prevention of crime? 

A

Complete Defence

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2
Q

What act is self defence/prevention of crime under? 

A

S.76 criminal justice+ immigration act 2008

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3
Q

The first stage of self defence/prevention of crime? 

A

Whether the force used was unnecessary - s.76(3+4) - The rest is based on the subject of test - based on the defendants belief
(R vBeckford)
( R v Yarman)

However - s.76 [5] Force unbelief will not be genuine if defendant made judgement whilst being intoxicated ( R v O’Grady) 

Unless You have genuine evidence of an attack against you R v McGrath 

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4
Q

What is the second stage of self defence/prevention of crime?

A
  1. Whether the force was reasonable - proportional s. 76[6] based on objective test - would the Reasonable man deem it proportional?

R V Clegg - threat had passed

R v Martin 

S. 76 [7] - R v Palmer jury does not expect defendant to weigh to a nicety the exact measure of force

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5
Q

What are the positives and negatives of stage to self defence / prevention of crime ( s.76 [7])

A

+ you Can make a pre-emptive strike no duty to retreat - ( R v Bird )

  • Cannot rely on defence if you are the aggressor unless the force used against you was disproportionate (R v Keane )

+Homeowners s.76 [5A] - ( A Just means amendment or addition added in) - homeowners force will be unreasonable if grossly disproportionate

R v Hussain+ Hussain

Omari Roberts

Tracy Ferrie

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6
Q

What is the intro for law on self defence evaluation? what does it help confine

A

Law on self defence has been codified under the criminal Justice + immigration act 2008- This confirms old common principle helps with clarity

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7
Q

How do we evaluate stage one of self defence ?

A

Was it necessary to use force S.76(3+4) - use the subjective test on D’s belief - (R v Yarman) (R v Beckford)

+ Test as essential as only defendant can explain they fear in the situation everyone’s response is different

S.76 (5) - Defendants belief is not genuine if intoxicated ( R v McGrady)

however it can be if you have genuine evidence and there was attacked against you (R v McGrath)

+ Passes an important message that intoxication is not an excuse for a crime
However R v McGrath makes a common sense principle they can still have the defence while intoxicated

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8
Q

How do we evaluate self defence stage two?

A

S.76(6) was force Use the reasonable was it proportional? - the objective test ( R v Clegg ) - threat has passed (R v Martin)

+ sets acceptable standers Of behaviour
And Avoids the potential that someone could lie

  • however - Subject to test me help only D was in that moment
    So this really has the jury thinking like the defendant
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9
Q

How do we evaluate the second point in stage two of self defence?

A

S. 76(7) Jury must not expect the defendant to weight to a nicety of the exact measure of force - ( R v Palmer)

+ no tolerance of violence
+ allows Flexibility
+ Allows laws to unify loss of control 55(6) (a+b) CJA (R v Daws) 2009
- Disproportionate- vague - need clarity

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10
Q

How can we evaluate the making a preemptive strike with no duty to retreat (R v Bird)

A
  • hard to Jude proportionally
    + allows D to protect self when necessary
  • no duty to retreat and stage 1 contradictory
  • allows D to be taking law into own hands - encourages violence
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11
Q

How do we evaluate self defence home owners case S.76(5A) ?

A

Response to R v Martin Force will be reasonable unless it’s not grossly disproportionate
( R v Hussain Hussain )
( Tracy Ferrie )

+ Home Life important- where people feel Safest
- encourages Extrems violence - law is taken into own hands
- What is grossly disproportionate

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12
Q

How do we evaluate what kind of defence self defence is ?

How was the outcome for murder resolved ?

A

General defence - All or nothing
- does not act as a form of mitigation

Murder - HOL - select committee campaigned partial defence - manslaughter - resolved by LOC fear trigger S.55(3) (R v Ward)

However arguably seen as disproportionate failed stage 3 LOC

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13
Q

how can we go evaluate the reforms of Self Defence

A

Self defence - seen as a legitimate deference of an unlawful attack against you or others

Attack must be immediate- should always retreat
Force must be necessary proportionate - same as current law

  • immediate- vaguely applied in law so need clarity on meaning
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14
Q

How do we go through the Criticisms of intoxication? (Into)

A

2 types of intox - voluntary and involuntary

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15
Q

What is voluntary intoxication a defence for ? (Criticisms)

A

Specific intent crimes - should it be a defence ? - alcohol causes problems within society - pressure NHS

  • aggravating factor but also a defence
    Mitigating force ? no defence
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16
Q

What are the criticisms of basic intent / specific crimes ?

A

DPP V Maljewlski - basic intent one with recklessness no defence

S.3 R v Heard - sexual offences act Basic intent crime with no MR - Made policy decisions unclear

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17
Q

How do we evaluate R v Kingston?

A

R v Kingston - Lord Musthill -no clear distinction between specific and basic crime MENT to be soully separate law

However rule is unfair no drop down defence

Murder- Manslaughter

Theft - ?

18
Q

How does intoxication operate differently from different defences? 5 examples ?

A

Unclear and inconsistent

Consent - R v Aitkens - allows drunken mistake

Lawful excuse S.5 CDA - (Jaggard V Dickson )

Self Defence - no drunken mistake - goes against Jaggard V Dickinson

Dim Res- accepted as a Medical condition - (R v Dowds )

automatism - don’t accept drunken induction- R v Bailey

19
Q

How can we criticise the intent within self defence

A

Drunken intent - Still indent - VI - R v Parker

II - AG ref for NI v Gallagher

+ Protects the victim prevents D to use alcohol to justify actions

❌ issues with R v Kingston - not have acted on urges if had not been drugged

However harshness of R v Kingston helped protect the victim

20
Q

How can we criticise in voluntary intoxication within the criticisms of intoxication?

A

IV - No definition - case law cratered a list of what may be in voluntary intox

R v Hardie - Opposite effect so it was fair for def as there was no of knowledgeable risk

Med had dif Effects on people

However R v Allen - no defence did not know the stength ? logical

21
Q

How can we criticise the reform of intoxication?

A

Law commission 2009 - approve the Maljewlski Rule - would Defendant to take the risk or be aware of risk had be not been intoxicated - no defence

22
Q

What provides a list of examples or criticism under intoxication?

A

In voluntary intoxication

23
Q

What may you be allowed in Criticisms of intoxication? 

A

Duress - keep hardie Medication spiking 

24
Q

What is Duress?

A

Threat of force to steal 

25
Q

What is the first type of duress ?

A

Duress of threat under R v Graham which has three stages

26
Q

What kind of defence is Duress? 

A

Complete defence except for murder - (R v Howe ) or attempted ( R v Gotts )

27
Q

What is the first stage of Duress ? 

A

What’s the defendant compelled to act the way you did because he busy believe if you did not death or serious injury would result

Threat of death or serious injury ( R v Valderma Vega ) - Disclosing the information is not enough ( R v Dao)

Threat must be connected to the defence- ( R v Cole) 

Threat must be immediate- ( R v Hutson + Taylor )

(R v Abdul + Hussain) - Brett does not have to be media if it’s so overbearing- could have avoided threat ? 

28
Q

What is the second stage of Duress ? What do we have to consider ? 

A
  1. Would a person who is Sober and had a reasonable firmness is given into the threat ?

Consider age of sex
do not consider IQ ( R v Bowen ) 

29
Q

What is the third Stage of duress ? 

A

Cannot be self induced (eg Cannot bring blackmail upon yourself) (R v Hason)

Do not get defence if there is any criminal involvement

(R v Fitzpatrick) - IRA

30
Q

What is the defence 2 of Duress ? What case does it come from ? 

A

Duress of Circumstance - (R v Willer )

31
Q

What is the first stage of Duress of circumstance?

A

Circumstance (Position) - if you did not act death or serious injury would result- R v Martin - Father was disqualified from driving but it did not wife - committed suicide

32
Q

What is the second stage of duress of circumstance? 

A

The same as Duress of threat - ( R v Pommell) ( R v Bowen ) - X IQ

33
Q

What is the third stage of duress ? 

A

It’s the same

if not self induced do not know clear intentions

34
Q

Where does Attempts come from ? (AR)

A

Criminal attempts act 1981

35
Q

What is the definition of someone guilty of attempts ? (AR)

A

If with intent to commit offence does act which is more than merely preparatory

36
Q

What does AG ref 1 1991 state you have to reach more than merely disproportionately? (AR)

A

Don’t have to reach point of no return

37
Q

What does Gullerfer state the defendant had to embark on to be guilty of attempts ? (AR)

A

Had defendant embarked on crime proper ? - (have they started journey to commit ?)

38
Q

What does Geddes says in second Part of Attempts AR? What has to be shown ?

A

Had defendant moved from planning to execution

Had D Act showing trying to commit ?

39
Q

What case after Geddes and what does it show. What are the positives?

A

Campbell - D wanted to commit but police stopped before went in

S.1 (2) - can attempt the impossible - is act impossible to do? ( R v Shrivpuri)

40
Q

What is the mens rea of attempts ?

A

Intent to commit full defence -
R v Whybrow - murder shows intent to kill - GBH - R v Belfrom R v Taylor

R v Easom- Theft- R v Velluym - intent to permanently deprive s.6 - specific item - browsing through bag ? Not offence

Robbery - R v Daws

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