General defences

Question 1

What does Self defence cover?

Answer 1

Not only actions to defend oneself from an attack but to defend another person.

Question 2

Is self defence a common or statutory law?

Answer 2

Common

Question 3

Is there an additional statute to self defence?

Answer 3

Yes, s3(1) of Criminal Law Act stating a person may use force reasonably in circumstances in prevention of crime.

Question 4

What act sets out what reasonable force is?

Answer 4

s76 Criminal Justice and Immigration Act CJIA

Question 5

What is the force being reasonable decided by reference to?

Answer 5

To the circumstances as D believed them to be

Question 6

What is the scope of the defence?

Answer 6

Normally used for non fatal offences against the person but can be used for other crimes eg murder

Question 7

What are the conditions that apply to both common and statutory self def?

Answer 7

1) Did D honestly believe force was necessary? (Subjective test)

2) Degree of Force - DId D use a reasonable amount of force in circumstances as he believed them to be (Objective & Subjective test)

Question 8

Describe did D honestly believe force was necessary test

Answer 8

a) Threat must be imminent - prep are in A-G Ref No2 1983

b) D does not have to retreat, no longer obliged to retreat before using force. eg Bird 1985

c) The threat must not be self induced R v Rashford 2005

d) Pre-emptive strikes - D may anticipate attack and strike first in limited circumstances eg Beckford v R 1987

Prep for an attack - includes prep but has been narrowly interpreted as to not cover aggro rather than defensive force eg A-G Ref No2

e) Mistaken belief force is needed in self def- subjective, if D honestly believed force necessary and that the force he used was reasonable then he is allowed self def even if mistaken.

S76(4) Criminal Justice and Immigration Act 2008; Confirms D’s belief must be honest. Need not be reasonable.

Drunken Mistake - If mistake is caused by intoxication self def not allowed, eg O’grady 1987. Confirmed by S76(5) Criminal Justice and Immigration Act 2008

Question 9

Describe the cases where:

1) Can prep for attack but cant be instigator. Ex shows up at pantry. D fought, left but later returned, during 2nd argument D punched him and forgets she is holding a glass in hand. Ex lost sight in one eye.

2) D went to find V to attack them. But, upon arriving, V & friends used more force against D. D tried to use self def.

3) PO shot V thinking V fired shots at other police.

4) Shopkeeper had 10 petrol bombs to protect shop during riots. Allowed so long as possession ceases upon the riots stopping.

5) D & V Friends, Drunk & Fell asleep, D woke thinking V was hitting him and smashed V overhead w ashtray. Held - Self def not allowed, voluntary intoxicated.

Answer 9

Bird 1985

R v Rashford 2005

Beckford v R 1987

A-G Ref no2 (1983)

O’Grady 1987

Question 10

Describe Degree of Force - DId D use a reasonable amount of force in circumstances as he believed them to be (Objective & Subjective test)

Answer 10

Force used must be proportionate, reasonable person must see some proportion between force used and danger perceived.
S76 Criminal Justice and Immigration Act 2008 person acting for leg purpose may not be able to weigh nicely the exact measure of any necessary defensive action.

Jury decides what is reasonable, it is a question of fact not law and they look at:
a) Time available for D to consider what to do
b) Gravity of the crime or evil to be prevented
c) Whether it was possible to prevent the evil by other means
d) The relative strength of the parties involved

Chasing someone - Hussain & Another 2010

Excessive force - If force necessary btu used more than justifiable D will lose the def Clegg 1995.

D’s characteristics not relevant - Psychiatric conditions that make D especially fearful will not be given to RP. Tony Martin 2001

Use of reasonable force at place of residence/Householder cases
s43 Crime and Courts Act 2014 amends s76 CJIA to extend meaning of reasonable force in respect of householders
Collins v Secretary of State for Justice 2016

So householder will only lose def if grossly disproportionate in other cases def is lost if disproportionate, must be a dwelling, D cant be trespasser, D must honestly believe they are being threatened.

Question 11

What are the two types of Duress?

Answer 11

Duress by threats
Duress by circumstances

Question 12

Is duress a partial or complete def?

Answer 12

Complete

Question 13

Which element of both duresses are missing?
When does it come into play?
What is the policy and what is the principle?

Answer 13

1) Actus Reus
2) When D has committed the offence but did not act voluntarily
3) Policy- Law should protect society and bring justice to victims. Those committing crime should be guilty.
Principle - Law must safeguard rights of D, presumption of innocence. If D compelled then actions not voluntary & D should not be guilty.

Question 14

What is the definition of Duress by Threats

Answer 14

D has been effectively forced to commit a specific offence due to a threat or death or serious injury issued by another person.

Crime is excused as concession to human frailty.
Def based on compulsion due to threat.
Available to all crimes except murder, attempted murder and accomplice to murder.

Question 15

What is the case where D lived w wife and lover, lover bullied D into killing his wife, so D did so intoxicated. Not duress as reasonable person wouldnt of

Answer 15

Graham 1982

Question 16

What is the Graham two stage test?

Answer 16

1) Was the defendant impelled to act in the reasonable belief that he or she or others would be killed or physically injured if he or she did not comply with the threats?
AND
2) IF so, would a sober person of reasonable firmness sharing the same rel characteristics of def have acted in the same way? )Def is not available just bc D reacted to threat, threat must be one that ordinary man would not have resisted)

Question 17

Describe the first part of the Graham test

Answer 17

a) The nature of the threat - must be of death or serious injury eg Singh 1973
A threat to expose sexuality is insufficient eg R v Valderrama Vega 1985 but a threat to rape is R v Ashley 2012

Includes mental & phys harm but threats to damage or destroy property insufficient.

b) Who is threat aimed at?
Threats to other people will support, but usually restricted to immediate family Hasan 2005

c) Mistaken belief Cairns 1999

d) Threat must be iminent to overbear D’s will
Threat must exist at relevant time to overbear D’s will and should have no opportunity to avoid committing crime

Must be no way out/opportunity to get help or escape Gill 1963 - D had opportunity to go to police but didnt. Didn’t get duress

Hasan 2005 - Criticised & Disapproves of Hudson and Taylor and Abdul-Hussain. Threat must be immediate/almost immediate. Must seek police protection if possible.

D must stop committing the crime as soon as possible - Duty to desist.

Question 18

1) To expose D’s adultery is not sufficient for duress
2) D forced to import cocaine or else family would be injured and out homosexuality. Duress allowed for family threat, not for threatening to out sexuality.
3) Reasonable for defendant to think he was being threatened so not guilty GBH even if no threat.
4) D had opportunity to go to police before stealing employers lorry - duress not allowed
5) Defence restricted to D, family or someone they are responsible for

Answer 18

1) R v Singh 1973
2) R v Valderrama Vega 1985
3) Cairns 1999
4) Gill 1963
5) Hasan 2005

Question 19

What is the second part of the Graham test?

Answer 19

Objective - Graham 1982, not duress a sober reasonable person would not have acted as he did so it must be reasonable and proportionate response, a sober person of reasonable firmness wouldve done same, Makes def harder to prove, Some evidence on D’s vulnerability allowed as D’s characteristics will be given to RP.

Acceptable characteristics - Age, Serious phys disability, Sex, Pregnancy, Recognised mental illness.

Unacceptable characteristics - Intoxication (Policy) , Timid or vulnerable to pressure (Policy), Low IQ short of mental impairment, Self imposed characteristics caused by abuse of alcohol, glue sniffing,etc

Question 20

What are the limitations of duress?

Answer 20

1) Duress is not available where offence is murder
i) Duress has never been available for principal offender in murder
Dudley & Stephens 1884

ii) Duress used to be allowed for a SP to murder:

Lynch v DPP for Northern Ireland 1975 - D drove car being told he would be shot. D waited whilst terrorist and associates killed policeman then drove them away. HL held as not guilty as a SP. Practice Direction 1966 was used to overrule the decision.

iii) Now under Howe 1987 - Duress not allowed for either. Wilson 2007

Howe identified 5 reasons for def not being allowed for murder:
1) Heroism and sanctity of human life
2) Terrorism
3) Executive discretion
4) Comparison with necessity
5) Legislative argument

2) Duress not allowed for attempted murder - persuasive obiter from Howe

3) Duress is not available where duress self-induced eg gang membership or voluntary exposure

Hasan 2005 - D does not have to foresee type of crime he may be threatened with, only that he may be threatened with it.

Answer 21

1) Wilson 2007

Question 22

Define Duress of Circumstances 1986

Answer 22

Where threat arises as result of circumstances they find themselves in, rather than single identifiable person issuing threat eg Driving wrong way to avoid tidal wave

Now applies to all crimes except murder, attempted murder and accomplice to murder.

Question 23

What test is used for Duress of Circumstances?

Answer 23

Graham test 1982

Question 24

Describe the first part of the Graham test
(circumstances)

Answer 24

Threat must be imminent to overbear D’s will

Jones 1990
Abdul-Hussain 1999

What if there was no real threat? Cairns 1999

Question 25

Describe the second part of the Graham test (circumstances)

Answer 25

Would a sober person of reasonable firmness sharing the same character as accused have acted in the same way?

Initially only def to crimes that have no victim eg Martin 1989

Extended by Pommell 1995 to non driving cases

Question 26

What cases are these?:

1) D could have had def of necessity to driving with excess alcohol from fight but continued to drive 2 miles home.

2) Hijacked plane, stopped for fuel in Cyprus. Should have got off there, instead of coming all the way to the UK after hijacking plane.

3) Wife threatened to commit suicide if not drive son to work. D disqualified from driving. Def allowed.

4) Accused illegally in possession of shotgun, took it from friend to stop him os avoid threat of death or serious injury. Held, judge ruled def inadmissible, CA held and conviction quashed, def could apply despite delay of 7 hrs.

Answer 26

1) Jones 1990
2) Abdul-Hussain 1999
3) Martin 1989
4) Pommell 1995

Question 27

What is the definition of Necessity?

Answer 27

Involves a claim of pure justification on D’s part. D’s crime is justified because he was put in a situation where he had to choose between the lesser of two evils to avoid the greater harm unlike duress where there is compulsion overbearing will. Called the balance of harms.
eg Herald of Free Enterprise 1988

Unpopular as it can never be right to choose to commit a crime so usually has been denied as crim def. Exceptions exist.

Question 28

What are the three situations Necessity exists in?

Answer 28

a) Where crime is committed in the public interest eg Mouse’s case 1608

b) Where crime was committed to protect accused or property eg Bourne 1938

c) Where the crime involves assisting someone without consent eg Re S 1990

Attempts to extend medical necessity to medicinal use of cannabis failed eg R v Quayle 2005

Question 29

1) Barge was in danger of sinking, passengers threw items overbaord to lighten ship. Mouse owner of some cargo, brought civil action for trespass to goods. Court said action was justified.

2) Victim of rape given abortion after being raped by 5 soldiers, abortion preserved her life due to mental state

3) Doctors sought to sterilise person with mental age of 5 who became sexually active but could not give informed consent. Agreed so ruled in favour of defence.

4) Weren’t allowed to grow cannabis to treat illness causing severe pain

Answer 29

1) Mouse’s Case 1608
2) Bourne 1938
3) Re S 1990
4) R v Quayle 2005

Question 30

Describe the limitations on necessity

Answer 30

A) Statutory offence may expressly exclude necessity as a def eg Chichon v DPP 1994

B) Necessity never def to murder/attempted murder, may mitigate sentence

BUT Re A conjoined twins 2000 CA

C) Threat may be against people or property but not usually for leser dangers - generally no def for theft of food or clothing if just to prevent hunger or cold.

Question 31

What is the case where:
1) It can never be necessary to remove muzzle from dangerous dog under Dangerous Dogs Act 1991

2) Conjoined twins would both die unless sep. Would cause instant death of Mary. Twins’ parents wanted both to be allowed to die. Hospital sought declaration that operation would be lawful.

Answer 31

1) Chichon v DPP 1994
2) RE A Conjoined twins 2000

Question 32

Why do we need a def of consent?

Answer 32

Contact sports, surgery, tattooing etc would not be possible

Question 33

What is the human rights conflict of consent?

Answer 33

Policy - To encourage good, civilised behaviour, paternalism - do not allow consent to certain uncivilised behaviour eg Brown 1993

Principle - Respect people’s right/freedom to choose without state interference.

Question 34

What is the rules of consent?

Answer 34

Consent is def to A&B unless contrary to public policy

Not a def to ABH or s20 unless exception applies
Never def to s18 GBH (unless surgery) or murder as not in public interest

Question 35

Is consent a defence?

Answer 35

Technically no eg R v Donovan 1934

Question 36

What is the diff between express & Implied consent?

Answer 36

Expressed: Explicitly asked verbally or in writing eg when getting ear pierced or having surgery

Implied: Impliedly consenting to minor batteries eg football matches, playing contact sports, busy streets, etc Wilson v Pringle 1987

Question 37

1) D caned 17yo girl for sexual gratification. Consent allowed

2) V fell and suffered injuries in corridor at school. Busy corridor so consent implied.

Answer 37

1) R v Donovan 1934
2) Wilson v Pringle 1987

Question 38

What are the requirements of consent?

Answer 38

1) Consent must be valid ie V must have legal capacity (age, mind, sober)
Burrell v Harmer 1967
2) Consent must be real (true, genuine, informed) eg Risk of STD/HIV transmission

Dica 2004 - overruled Clarence 1888

Submission is not the same thing as consent eg Olugboja 1982

3) Consent must not be induced by fraud.
Fraud to identify D can invalidate consent eg Tabassum 2000

Question 39

1) D charged w ABH after tattooing 12 + 13 yos who was decided too young to understand the nature of the act.

2) Possible to consent to risk of serious harm (AIDS) from sex if D clearly aware and accepts risk. CA held that uninformed consent not consent. D was guilty of s20 OAPA 1861 despite V consenting to unprotected sex.

3) Husband knew he had STD and had sex with wife. Not guilty as she consented.

4) Saw someone being raped. Rapist claimed submission was consent.

5) Doctor examined women. Said he was medically qualified. It was not medical exam and deceived identity, not qualified. Consent not allowed.

Answer 39

1) Burrell v Harmer 1967
2) Dica 2004
3) Clarence 1888
4) Olugboja 1982
3) Tabassum 2000

Question 40

What is the deal with minors and consent?

Answer 40

Children under 16 can consent if they have sufficient intelligence to understand fully (A ‘ Gillick Competent ‘ child. ) eg Gillick v West Norfolk AHA 1986

Question 41

What happened in the case that decided a parent can give consent for a child until child is competent to make choice, even if under 16

Answer 41

Gillick v West Norfolk AHA 1986

Question 42

What are the limitations to consent?

Answer 42

V can only consent to limited amount unless exception applies - Brown 1993 set exceptions

Public policy - if there is no social usefulness and not in public interest, V cannot consent

Intentional injury - Fighting, Fist fights and street fighting not lawful as they offend public policy, Boxing is fine as they are conducted with proper rules with protective equip and ref

Surgery.- Consent can be refused eg Blaue 1975, it is presumed in life saving emergencies tho

Tattooing, body adornment, piercing - V will give express consent as its considered to have some social utility eg Wilson 1996

Sado-Masochism - Law has not accepted idea of consent being def to injuries inflicted for sexual gratification, especially when serious eg Brown 1993

Question 43

What is the case where:
1) Husband branded wife, she needed med attention, consent allowed even if injury perm

2) Group of gay men supposedly doing drugs doing sadomasochistic activities, charged with ABH & GBH despite everyone consenting and no medical consent needed ‘ Society is entitled to protect itself against a cult of violence ‘

Answer 43

1) Wilson 1996
2) Brown 1993

Question 44

Describe Accidental injury

Answer 44

Properly conducted sports - Any incident outside rules will not be considered consented to, players have to have consented to contact incidental to sport. eg Barnes 2004

Horseplay - Mistaken belief in consent will be def if genuine honest mistake. Possible bully’s charter?

Controversially extended to airmen eg Aitkin 1992.

Reasonable and lawful chastisement of children - Corporal punishment lawful if reasonable and proportionate in circumstances involving no cruelty.

Question 45

What is the case where:
1) Tackle was outside rules but not enough to be criminal. Must really be actionable to be crim.

2) Airmen in barracks got drunk, one fell asleep, set him on fire due to ‘ fireproof suit ‘ but consent allowed.

Answer 45

1) Barnes 2004
2) Aitkin 1992

Question 46

What is the advs of consent?

Answer 46

Advs-
Consent prohibits uncivilised behaviour and enables morality

Consent requires basic rules such as of sound mind, age, legal capacity and how sober the person is.

Sport is encouraged and participants are generally protected for reckless harm by consent unless behaviour is incredibly dangerous

Social utility allowed in issues such as surgical operations

Question 47

What is the disadvs of consent?

Answer 47

Disadvs-
Def allowed for wilson but not Brown
A) Discrimination?
B) Another reason? Society bound to protect itself from cult of violence, in principle there is a diff between violence that is incidental and violence that is inflicted for indulgence of cruelty

Differentiating assault and ABH absurd. Possible to consent to A or B but not ABH which is same in everything but level of harm which can be minimal such as bruising.

Public Policy and Human rights - Difficult to get right balance between. Consent is restricted by public policy. Who draws the line? Courts and judges must decide as cases arise, problem of moral interp and Judges do not reflect society.

Surgery - What can be consented to? What should be consented to? Is cosmetic surgery an issue of consent?