general defences Flashcards
what are the 5 defences
consent
self-defence
Duress by threat ‘
Duress by circumstances
Necessity
what can consent apply to
Can apply to some non-fatal offences, not strictly a defence, does makes conduct legal
what happen in R v Slingsby 1995
charged with voluntary manslaughter. Victim took part in ‘vigorous’ sexual activity but due to scratches induced by a signet ring suffered blood poisoning and died. Consent meant there was no unlawful act thus no manslaughter
what is genuine consent
must be ‘real’ consent
submission due to fear or consent based on ignorance will not suffice.
facts of R v Dica 2004 HIV
D was diagnosed as being HIV positive. Knowing this he had unprotected sex with 2 women. With the first woman he insisted that the intercourse was without protection, they didn’t about his condition.
held for r v Dica 2004
Dica was charged with two counts of inflicting grievous bodily harm, contrary to s. 20 of the Offences Against the Person Act 1861
what is implied consent
the are instances where consent my implied like in a crowd of people - Wilson v Pringle 1987
however, you might rightly ask when actions in sport would break the rules of consent
case link to implied consent
R v Barnes
what was said about r v barnes
“ only where conduct is sufficiently grave to be properly categorised as criminal”
what article links to cannot consent to being killed
article 2 ECHR- right to life
what is not include in article 2 in the ECHR
does not include right to be killed
euthanasia and assisted suicide remain criminal
what situations where consent is harmful
properly conducted games and sports
lawful chastisement of correction
reasonable surgical interference
dangerous exhibitions
what consent with surgery (defence)
Where surgery if need to save like, or improve health consent is a defence to any assault charge unless the treatment has been refused
where is consent with ‘horseplay’
law recognised that consent may be mistaken. If D holds genuine belief if consent this may be enough for the defence.
case link to horseplay
R v jones 1986
facts of R v jones 1986
the appellants were schoolboys. They were convicted of inflicting GBH on two fellow schoolmates, having thrown them into the air with the intention of catching them. Unfortunately they had dropped them resulting in serious injury including a ruptured spleen.
held for R v Jones 1986
Appeal allowed. The convictions were quashed. Consent to rough and undisciplined horseplay is a defence and even if there was no actual consent, if the appellants had a genuine belief in consent they should be allowed the defence. There was no requirement that the belief be reasonably held, provided it was genuine
facts of R v Aitken 1992
The appellants were RAF officers. During the course of celebrations on completing their training, as a practical joke, they had taken to setting fire to officers wearing their fire resistant clothing. They had done this to two officers on each occasion the fire had been extinguished without injury. However, on the third occasion the officer sustained serious burns. The appellants were court martialled and convicted of GBH under s.20 offences against the person act 1961.
held for R v Aitken 1992
Appeal allowed. Of the officer had consented or the appellant’s believed that the officer had consented it was open for the judge to find that no offence had been committed
case link to sexual gratification
r v brown 1993
r v emmett
what did lord mustill say about r v brown
“the state should interfere with rights of the individual no more than is necessary”
what did lord templeman disagreed about r v brown
“society is entitled and bound to protect itself against a cult of violence”
what happen in r v emmett
a person could consent to risky sexual activity unless the harm went “beyond the permitted level”
left law unclear and inconsistent decisions
is there a defence for euthanasia
no defence for euthanasia
You have a right to life whether you want it or not
it is unlawful to assist what
Unlawful to assist someone to die or the euthanize them with their consent
Deferred to parliament whilst injustice may be argued to be continuing
what are the expectations where consent is allowed as a defence
lawful chastisement
what section is lawful chastisement
S.58 children act 2004
what does lawful chastisement allow
Allows for reasonable punishment provided that the battery does not result in ABH
what happen is there is chastisement towards adult
It would be assault if directed toward an adult.
what does the evidence suggest about lawful chastisement
Some evidence to suggest a ban on smacking leads to less instances of child abuse, domestic violence and violent offence genrally (Lyon 2000)
what does self defence cover
Covers defence of oneself and others
what sections cover self-defence
s.3 criminal law act 1967
s.76 criminal justice & immigration act 2008
s.43 crime and courts act 2013
what defence is sell-defence
common law defence but also outlined in statute (absolute defence)
what is stated about s.76 criminal justice & immigration act 2008
elaborates on the meaning of ‘reasonable force’
what is stated under s.3 criminal law act 1967(self-defence)
’a person may use such force as is reasonable in the circumstances in the prevention of crime’
what is stated about s.43 crime and courts act 2013
wider defence for householder cases
what act links to degree of force
criminal justice & immigration act 2008
what is the first part of degree of force criminal justice & immigration act 2008
A person may not be able to weigh the precise measure of necessary action
what is degree of force
Reasonable in the circumstances as genuinely believed in the defence of oneself or another
what was the second part of degree of force criminal justice & immigration act 2008
force that is honestly and instinctively used
what is the subjective test in degree of force
it was necessary to use force in the facts as D believed them to be
what is the objective test in degree of force
the amount of force used was reasonable in the circumstances as the defendant believed them to be
case link to degree of force
r v Hussain 2010
facts of r v Hussain 2010
D’s house was broken into by a group of armed men. I’ve of D’s sons managed to escape and alert their uncle
D&uncle chased off burglars and severely beat one of them
held for r v Hussain 2010
convicted s.18
threat had passed- force not reasonable(merciful sentences given)
facts of r v clegg 1995
D was a soldier at a checkpoint in northern ireland. Car came speeding toward him, he shouted stop but the car did not. D fired three shots at the car. The last shot was shown to have been fired once the car has passed
held for r v clegg 1995
conviction of murder was upheld as the danger has passed thus the force was not reasonable
what act links to householder cases
under s.43 crime and courts act 2013
what is the householder rule
the householder rule is must not be ‘grossly disproportionate’
what is the first requirement of householder
The force I used must be used by D while in or party in building that is a dwelling
what is the second requirement of householder
D must not be a trespasser
what is the third requirement of householder
D must have believed V to believed to be a trespasser
what act is mistaken use of force in self-defence
s.76(5) criminal justice & immigration act 2008
case link for mistaken use of force in self-defence
r v Gladstone Williams 1984
facts of r v Gladstone Williams 1984
The appellant witnessed a man attack a youth. He rushed to the aid of the youth and the hit the attacker. In fact the youth had just committed a mugging and the attacker had wrestled him to the ground to prevent him escaping. The appeal was allowed and the appellant’s conviction was quashed.
held for r v Gladstone Williams 1984
judged based on guidance mistaken view of the facts regardless of whether it is is reasonable
what happen in r v bird
(pre-emptive strike)- no you may act to prevent unlawful force . this could include making preparations to defend yourself in the future
What does duress involve
It involves situations where the defendant has been ‘made’ to commit an offence. Threatened with death or serious harm to themselves or another.
What defence is duress
Absolute for certain offences the defendant needs both AR and MR of the offence
Case link to duress
Rv Howe 1987
Facts of R V Howe 1987
D involved in the torture and murder of two men on separate occasions. In the first D was present but not the principal offender. In the second D killed himself.
Held for R v Howe 1987
Duress unavailable to anyone charged with murder as either the principal or secondary offender
Facts of Wilson 2007
D who was 13 and his father were charged with the murder of his mother.
D stated he helped his father as he was too afraid to disobey him
Held for Wilson 2007
No defence of duress available for murder
Facts of Gotts 1992
D who was 16 was threatened by his father and ordered to stab his mother.
D did this but not kill her
Held for Gotts
No defence for attempted murder
What 3 elements of duress by threat?
Threat must be of death or serious injury
Threat made against:
Ds act must be reasonable and proportionate to the evil avoided
What the threats made against who or what
Self
Partner and immediate family
Those for whom D reasonable regards himself responsible for
Possibly strangers but no clarification
What must be shown when a threat of death or serious injury is?
Must be shown that a threat of death or serious harm exists
Case link to threat of death or serious injury
R v valderrama-veca (1985)
Facts of R v valderrama-veca (1985)
Defendant imported cocaine and said receive threats of death, financial ruin and exposure of homosexuality
Issue is the type of threat
Held for R v valderrama-veca (1985)
Court of appeal said that all threats were considered as death was also threatened
Who can been threaten into duress
-Self
-Partner and immediate family
-Those for whom the defendant reasonably regards himself as responsible
What is unclear about threat to whom
It is unclear whether the threat can be to a complete stranger as there are no cases on the issue
Facts of R v Graham
D was a homosexual man living with his wife and another homosexual man(K). K was violent and after drinking heavilt ordered d to help kill the wife.
Held for R v Graham
D claimed duress. No defence for murder.
Facts of R v Martin
D suffered with schizoaffective disorder which led him to believe things said to him were threatening in nature.
What did in believe in R v Martin
He believed he was being threatened by two men on his estate to carry out robberies or himself and his mother would be harmed
Held for R v Martin
Subjective element will take into account what the defendant reasonably believed
Mental illness may be a relevant factor
facts of R v Bowen
D had low IQ and obtained goods by deception for two men who had threatened to petrol bomb him and his family
Held for R v Bowen
D attempted to use his IQ as a relevant factor in the objective test. Not successful
What are relevant factors with threat to whom
Age
Pregnancy
Serious disability
Mental illness
Gender
What are the further elements in threat to whom
-Escape opportunities
-Imminence of the threat
-Threat must be to make D commit a specific offence
-Voluntary intoxication
-Self-induced duress will not be a defence
What is an escape opportunities
Duress can only be used where D cannot escape the situation- ‘no safe avenue of escape’
Cases links to escape opportunities
R v Gill
R v Hudson & Taylor
Facts of R v Gill
D claimed that he and his wife had been threatened with violence unless he stole a lorry
Held for R v Gill
There was a period of time where he was left alone in which he could have raised the alarm so defence.
Facts of R v Hudson & Taylor
The defendants were two girls aged 17 and 19 who were acting as witnesses in a trial. They were found to have lied and were charged with perjury. The girls claimed they were being threatened by an external party known for violent behaviour. The questions was whether or not have sought police protection instead
Held for R v Hudson & Taylor
Imminent of the threat
The threat must be what
effective at the moment the crime is committed. Doesn’t mean threat needs to be able to carried out immediately
Case link to threat must be effect at the moment the crime is committed
R v abdul-hussain 1999
Facts R v abdul-hussain 1999
The defendants were Shi’ite muslims who had fled to sudan from iraq and then hijacked a plan to avoid deportation. They landed in the uk and were charged with hijacking
Held R v abdul-hussain 1999
Pleaded duress and were successful
What is the first part that was held for r v Abdul-Hussain 1999
There must be imminent peril of death of serious injury
What is the second part that was held for r v Abdul-Hussain 1999
The peril must operate on the D’s mind at them time of committing the act
What is the third part that was held for r v Abdul-Hussain 1999
Execution of the threat need not be an immediate prospect
Is there a defence for voluntarily intoxication
No- if intoxication is not relevant to duress, then duress can be used
Is there a defence for self-induced duress
No
what is necessity used for
Used to avoid a greater evil
what defence for necessity
Absolute defence but may also serve as mitigating facto
what is necessity similar to
Similar to duress of circumstance but courts reluctant to confirm this
what’s the difference with necessity and duress
duress not available for murder but necessity is
case link to necessity
R v dudley and stephens
facts R v dudley and stephens
two defendants shipwrecked with a 17 year old in a small boat
After drifting for 20 days without food for 9 days or water for 7 the two defendants killed and ate the 17 year old
held for R v dudley and stephens
Claimed necessity
Convicted of murder and sentenced to hang but sentences commuted to 6 months imprisonment
facts of Re F
Health authority applied to sterilise a girl patient with severe mental disability who had developed a sexual relationship with another patient and was in danger of becoming pregnant.
held for Re F
HOL granted application on the grounds necessity in avoiding the greater evil posed.
facts of Re A
Conjoined twins.
Doctors applied to separate them which would lead to the certain death of one twin but the potential survival of the other.
Parents refused.
held for Re A
Court approved defence of necessity.
what happen in Shalyer 2001
D was a former MI5 employee. Disclosed confidential information but claimed defence of necessity. The conviction was upheld as the test of duress of circumstance.
what is the first part of the test for duress of circumstances and necessity
The act must be done only to prevent an act of greater evil
second part of the test for duress of circumstances and necessity
The evil must be directed towards the defendant or a person(s) for whom D is responsible
third part of the test for duress of circumstances and necessity
The act must be reasonable and proportionate to the evil avoided
